 First Bill we're taking up today and unfortunately Senator Baruth has an engagement in some kind of a writer's series at the University of Vermont that he cannot get out of and will not be able to join us and Senator White is on a medical excursion until 1030 and will hopefully be joining us then so right now it's just three of us and we're taking up for committee discussion and any further amendments or whatever the committee wants to do with age 837 life of states deeds and by the way is I want to mention that age 963 for whatever reason and this is getting frustrating I don't know if the Rules Committee met this morning we did but a bill was obviously with sunsets and very important bill never got approval from the Rules Committee so that's why it's not on the calendar it can be dick we met and we agreed to let it go oh thank you good yeah well thank you so well that's what happened Eric wrote me last night and said he couldn't find on the calendar and right and then I found out that it was actually the Rules Committee hadn't approved it so I doubt they've approved this bill either but I'm not sure I could act I guess I could ask since Andy Michael and Joe Bauer are with us and is the bill effective on passage Eric that's a good question let me check real quick yeah it is yes yes well we would need to get Rules Committee approval to if we were to voted out positively we would need Rules Committee approval to take it up on the floor just well are they our rules when is rules meeting again Joe I don't believe we have set up a schedule of when we're going to meet next I see well we'd have to be tonight or tomorrow yeah I can actually see this as being a COVID related yeah a lot of people are thinking about their estates and what they're going to do and wills and other things so anyway we did receive a Peggy forward it or to everybody an email from Mr. Attorney Pratt Bob Pratt who withdrew his objection even though it was evidently an objection because he had approved the first draft and then there was a change in that section 655 B that he was concerned about so any comments on that or any we can vote to bill out 302 fine with me so so with Attorney Pratt's objection gone we don't have any objections on the record to it no we don't have any objections on the record and I believe that I would move that we approve H 837 as it came to us from the other body is there any discussion Joe or Andy would you like to weigh in a Terry Corsons since you're here oh that's I think that we've covered everything so thank you for your efforts welcome thank you Terry or Andy any comments no I agree sorry for the confusion yesterday but I think at the end everything is where where I think it started and where it ended so thank you thank you so much for expediting it and I agree with you Senator Sears that there are COVID-19 ramifications because we've had many many inquiries about it and this will be very helpful to the people that have asked okay great well I mean it could pass it could pass tomorrow before we adjourn and no matter when the governor signs it'll be effective when he signs it assuming it passes because since we're not making any change that we go to direct to the governor so when when when the bill get if the bill is voted out positively by the committee and I will Eric will send the normal email and Joe would report it but I'll send if you send me a copy of the email Eric I'll send a copy to Tim Ash and John Blumer and asked the rules committee to meet to approve the bill okay so just like yesterday with 963 just send one to senators as normal although realizing that we've got to get rules committee approval to ship it out sounds good Eric can I get a very short summary do you want to do the video Peggy I'll need the list of witnesses yep do you want me to roll call or no senator Sears yes we should roll call okay I thought you were finishing up sorry oh I think we're fit is there any further discussion hearing none Peggy would you please call the roll yes senator Benning yes senator Nica yes senator Sears yes it'd be three zero zero okay we could obtain senator whites when she gets here but since senator Bruce won't be here it'll be impossible to him to vote three zero two right now it could be four zero one yeah swimming senator whites supportive when she gets here at 1030 we're gonna have to end the meeting at 11 so Eric thank you thank you or can you see if any of the others are ready earlier I just emailed Luke a few minutes ago and I have not heard back okay I better senator Sears is a it's 963 or maybe senator Benning you would know this because it is the 963 on the floor today you think or the sunset bill sunset bill just received permission from rules to let it go through to the floor I think there's gonna be an effort to made sometime today to put it on the calendar but I don't think it's on there yet it can be voted on tomorrow actually if it was voted on tomorrow passed and goes to the governor it still gives the legislature is passed today you know like we talked about yesterday if I'm not sure a day is gonna matter a huge deal if he signs it on the first or not yeah I think that's right so I would I'd be more comfortable if we let it go on and take it off notice tomorrow right you got the summary for that one senator Sears right there I do yes thank you Eric okay it's not that hard right true you know some some days I just wonder about the house and it's disappointing to have to come back and renew those sunsets again next year on those same issues that's all that's all I would say I mean you know on two of the issues the diversion and the racial disparities we're gonna have to come back next year the other one in two years so you know it's kind of it puts us right back in that same boat where if you forget the sunset you end up losing something like the diversion programs changes right or the racial disparities council well hang on to the summary so we can use it again next year yeah assuming that you know there is an election all right all right I see Luke is here and maybe Eric thank you again thank you it's been a terrific experience I was gonna I said this to Senator Bruce last night in an email and I want to say it to you Eric and I would say it to everybody on the committee including Peggy and I want it also to Brennan and Michelle how much I appreciate everybody's efforts in these really trying times I never we've dealt with some easy issues and some really difficult issues in here and remotely is extremely difficult to deal with them and it's been a teamwork effort on behalf of this committee the staff Eric Michelle Bren I can't thank you enough Peggy I don't know what we would have done without you I guess I'd have less hair than I do right now even though I need a haircut but I senator Benning and I'd probably quite a bit bald or if we hadn't been for all the efforts of the staff so I just want everybody to know and I appreciate the help of the committee we we've come together in really difficult times dealing with extremely difficult issues and I do appreciate everybody's effort well thank you senator Sears I'll pass that along to Michelle and Brennan as well I will we appreciate being able to work with the committee as well it's a great privilege for us too so thanks very much Luke that's an evaluation by the way I'm gonna say it's kind of nice my bosses on the line senator I think that helps all right thanks everybody yeah we'll I will not wish good luck to the Yankees though I know I respect that hi Luke thanks for joining us hi how are you we're doing fine we're getting there good sorry about the slight delay there no no that's okay and I I do hope I heard you heard my comments about our staff and a terrific job they do yes I share your incredibly high opinion about everyone you mentioned so I hear and I can't imagine any more difficult circumstances to work under I can remember asking Bren a question about it then the history of a large it said I can't get to the state house to find out you know and how difficult some of these situations are we're we're not we do not have possession of the bill but I thought I would guess that somebody is gonna say has judiciary looked at the global war global warming solutions act in terms of the changes in in the cause of action piece and so I thought that if somebody were to ask that we should at least have discussed it in committee and that's why I've asked and I appreciate you're being here Luke it is it is an unusual I think but maybe not I guess we could turn it over to you to kind of explain what the cause of action does or doesn't do yeah Senate Alice regard to the cause of action I'm trying to figure out is this with regard to the citizens right of action or the when well it starts out saying 10 VSA 594 cause of action any person may commence an action they said on the failure and center Nick I'm gonna walk through that language and explain it to you perfect and just let me say there's a lot of misinformation out there about this language so what I'm gonna try to do is run through the language for you explain it of course answer your questions but also talk about current remedies under current law and then what's similar to or different from what's in the bill so lot to talk about I'll try to move through quickly and if there's any questions please just stop me and ask Peggy have you made me a co-host yes great so I'm gonna share a PowerPoint with you the PowerPoint has the language from that section of the bill in it so you don't need to try to look at the bill online or jump back and forth what I would suggest you do is just follow along in the PowerPoint please interrupt with any questions but if you do that I'll be able to show you the language and we'll walk through it and I'll answer your questions as best I can and give me a moment just to pull up the PowerPoint and make it I'm just having some difficulty trying to make it so you can actually see it so just bear with me please there we go so good morning everyone for the record Luke Marland director of legislative council so I'm only going to talk in detail about the cause of action section but I want to first explain to you how the bill as a whole works and how this part of it works so what the bill does is is establishes mandatory greenhouse gas reduction requirements in statute for three time periods then it creates the Vermont climate council and the Vermont climate council develops the Vermont climate action plan that plan sets for strategies and initiatives to achieve those mandatory greenhouse gas reduction requirements but it's merely a plan then the law or the bill requires that a and r engage in rulemaking to implement the plan and achieve those greenhouse gas reduction requirements and then last but not least there is the cause of action if a and r either fails to engage in rulemaking or if it does engage in rulemaking but those rules are insufficient to achieve those mandatory emission reduction requirements so that's how this cause of action fits within the overall structure of the bill now I'll walk through the language in the cause of action section and I'll show it to you on the screen but overall it's broken into what I call two scenarios scenario a which is that a and r has failed to adopt or update rules they simply haven't done what they're supposed to do and we'll talk about rule 75 which is current law the timeframe and notice provisions and the remedy scenario B is when a and r does adopt rules but those rules aren't having the impact they're not reducing greenhouse gas emissions sufficiently to meet those mandatory reduction requirements and we'll talk about the timeframe and notice and also the remedy provisions then there's two other subsections of this section one concerns awarding cost and fees and the other simply is boilerplate that states that this cause of action does not change or limit any other existing remedy under law and we'll talk about those remedies so now I'm going to jump into the actual language of the section show it to you and discuss it with you but before I do that are there any questions so I mentioned scenario a or subsection a of 594 and this states that any person and person is defined broadly could be a natural born person individual could be an organization or legal entity may commence an action based upon the failure of the secretary of natural resources to adopt or update rules pursuant to the deadline set forth in another section of the bill so that's when a and r has failed to engage in rulemaking number one Luke may ask you a question there any person that could be somebody from Connecticut somebody from Belgium I don't think so a person is not to find in this bill which means a general definition of person which is set forth in one BSA 128 would be followed and that does include a natural person's corporations legal entities etc. However center sears I think there still has to be certain requirements met and so there would have to be someone who is some kind of particularized harm or can allege or establish some kind of particularized basis so a person from Belgium I think they have some have to have some connection to Vermont and this act and and the alleged failures under this cause of action so Luke why don't we then say that I mean technically a person living in Belgium is part of the globe this is titled the global warming solution act if they believe that Vermont is not doing its part to participate in that process how would we counter that by saying you really don't have a legal leg to stand on to sue the state of Vermont was you know center bending you have to come into Vermont to litigate the case here you have to usually show some basis some connection to Vermont some particularized harm for any cause of action and as I walk through the language here you'll see that this cause of action really has to do with a failure to engage in rulemaking or that there is a rulemaking but it's not having the required emissions reductions results and the way the emissions are defined our emissions within Vermont so I still think you'd have to show that connection to the venue and I still think you'd have to show that particularized harm in some manner so I don't think that a person from Belgium necessarily could enter Vermont courts and take advantage of this cause of action thank you okay please so let me walk through the language and this is straight from the bill is a word for word cut and paste so under a as I said any person may commence an action based upon a failure to adopt their update rules the action will be brought pursuant to rule 75 that's existing rule of procedure in the civil division of Washington County number two the complaint shall be filed within one year after expiration of the time in which A&R was required to adopt their update rules however a person shall not commence an action until at least 60 days after providing notice of the alleged violation to the secretary we'll talk about rule 75 in a moment but this is a time period and a notice provision that is a little different than rule 75 number three this is the remedy if the court finds that the secretary has failed to adopt their update rules pursuant to the deadlines and there's a cross-reference the court shall enter an order directing the secretary to adopt or update the rules if the court finds that the secretary is taking prompt and effective action to adopt or update rules the court may grant a reasonable period of time to do so so the remedy is not damages the remedy is to order A&R to engage in rulemaking however if the court finds that the secretary is taking prompt action to do so to fulfill that responsibility the court can grant a reasonable period of time to do so so this is what I call scenario A are there any questions about that what would be the remedy Luke in the event the secretary gets an order from the court saying you must do X and the secretary is unable to complete that task is it simply contempt of court that's a good question and there's no additional remedy in the bill for that scenario so you may know the answer to that question better than I do I think that might be a possibility we're assuming in this bill as in many bills that if there's an order of the court the the defendant in this case A&R would comply with that order or certainly do their best efforts to comply with that order well in the second part of this process first off the plans have to be adopted and I understand that process but in the second part of this we have to meet demands that comply with what are now being taken from goals and made into mandates and the question pops into my head what happens if the mandate cannot be met what that's scenario B so give me a second I'm just about to get to that that's a little different that's a very good question but that's a little different and we'll get to that in one moment okay any questions about A what I've covered so far no that's good sure so let's now look at what I call scenario B and I'm just using this scenario A scenario B to try to make it a little more clear so and by the way Peggy there's two people in the waiting room who are seeking admittance I wouldn't admit them I'll allow you to do that I just saw that I'm getting them now great thanks so under B any person may commence and I uh I'm just waiting for that pop up window to go away great any person may commence an action alleging that rules adopted by the secretary have failed to achieve the greenhouse gas emissions reductions requirements A once again the action is brought in spirit court of washington county I'm sorry B1 B2 the complaint will be filed within one year of the greenhouse gas emissions inventory that already exists under current law indicates that the rules have failed to achieve those necessary reductions however a person shall not commence an action to at least 60 days after providing notice so it tracks the same time periods in the same notice provision as under scenario A number three and this is what's relevant to your question center benny if the court finds that the rules are quote a substantial cause of failure to achieve the greenhouse gas emissions reductions the court shall enter an order remanding the matter to the secretary to adopt or update the rules to achieve those reductions 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 and this came up in senate appropriation so let's play with a couple of hypotheticals if an our adopts the rules are making a good fate effort to achieve those emissions reductions requirements but something happens that makes that impossible the federal government does something that just i don't know what i can't think of a great example that makes it impossible to meet those reductions the court would have to find that the shortfalls in the rules themselves were quote a substantial cause of failure to achieve those reductions if it's not the fault of the rules the court may not find that does that help answer your question a little bit center benny does mine um it may depending on what the circumstances are that are contained in the rule itself if the senate i'm sorry if the secretary has done everything possible in a rule to meet at least to their expectation the mandates that have been required by 25 or 30 or 2050 the upshot is the secretary has done everything that was believed to be something that would work but it doesn't work the secretary now has um it's stuck between a rock in a hard place with the court system um and i'm not i'm still trying to wrap my head around what happens under that circumstance could the secretary produce a a rule uh for instance that prevents anyone from using a gas powered vehicle or or device i i don't know the answer i'm just trying to sculpt this and wrap my head around it well that's um so just to step back for a second if the secretary does engage in rulemaking good faith effort but the federal government does something or something else happens completely out of the control of our or the state of roman that makes it impossible to achieve these emissions reductions it could be that if a case is brought the court would find that the rules are not a substantial cause of failure and therefore rule in favor of a and r so that that's a possibility in other words i would win mash the question in a different way and as i try to answer senator benning oh i'm sorry i thought you had yeah oh as then the he was saying well can you have a rule that bans internal combustions engines you know um any rule has to be constitutional any rule has to be workable and viable any rule can't be arbitrary and capricious any rule can't be preempted by federal law so you can play with the outer realms of these hypotheticals and that's understandable but understand as i think you know through the rulemaking process there's lots of guardrails to how extreme a rule could be and whether it's really could be implemented and achieve its goal so that's what i want senator sears sure if i'm not sure the federal government is going to fall into this at all frankly because the onus is on individual vermonters to help meet greenhouse gas reductions so at some point if the secretary is instructed that they have to meet x reduction in greenhouse emissions by a certain date it's not the secretary who is going to be having to do that it's the people of vermont who are going to have to do that and if a rule is presented to elkar elkar is going to look first to legislative intent legislative intent is very explicit about what goals are supposed what mandates are supposed to be met by what year and so i'm envisioning that there's going to be a battle somewhere down the road between what the secretary is forced to do to meet the legislative intent and what vermonters as citizens are going to have to do to comply in order to reach that objective i mean that's only common sense to me it's not going to be the federal government that's uh responsible it's not going to be the secretary who's responsible it's going to fall on the onus of every individual vermonter to have to respond in such a way that the overall objective can be reached and that this is where i get nervous i appreciate the explanation but i have to say i'm nervous senators here did you have a question yeah i do but i don't know if it's a question or a comment but as the wind was blowing here in my backyard i got to thinking about acid rain and the impact it had on vermont's forests and and vermonters and um we had little control over that um a and r could have made all the rules at once but it couldn't control what ohio and pennsylvania were spewing out of their smokestacks nor could it um so uh you know i would think that anyone who brought an action for the failure of vermont to stop certain emissions that it didn't have control over the court wouldn't find that that just common sense to me i hope that's somewhere in these rules or in the um in this cause of action senator nickah did you have a question and senator sears i don't know if you want to recognize people or you want me to it's a little hard on the uh zoom i can't see anybody except i can see senator benning you and senator nick and that's it so if you want to recognize people who want to i don't have a question okay so let me now proceed to the next two subsections of the language and then we'll talk about some other issues so subsection c has to do with uh costs and fees it says in an action brought pursuant to this section a prevailing party or substantially prevailing party uh one that is a plaintiff so that would be in an individual or entity suing a and r shall be awarded reasonable costs and attorneys fees unless doing so would not serve the interests of justice or two that is a defendant in other words a and r in the state of ramon may be awarded costs if the action was frivolous or lacked a reasonable basis in law in fact and a lot of this terminology is taken from other statutes or um concepts that we hope the courts are very familiar with for example substantially prevailing party i think you understand that term it's it's often used in other statutes um would not serve the interests of justice is a phrase that i we think the courts would be familiar with so what we're trying to do here is terminology that the courts are familiar with when they deal with costs and fees in other contexts d states that nothing in this section shall be construed to limit the rights procedures and remedies available under any law including the ramon administrative procedure act and it has a citation and so what is saying here is this new cause of action is additional it doesn't take the place of or limit any existing remedy under law and we'll talk about that in a moment so individuals would in essence have a menu options under existing law and then also perhaps this new cause of action are there any questions about that language no yeah senator nick and i'm senator benning so i'm just wondering with regard to one i mean might this not be an ongoing problem from certain people who like to litigate something on this very small there's a lot of lawyers in this world so could there be litigation yes there could be and but i mean if a case is frivolous so yes could someone bring a case could someone bring multiple cases perhaps and your colleague could probably answer that better but if it's a frivolous action there's ways for courts to weed those out so with respect to that alice was your question answered i'm sorry yes i'm also with respect to that luke i had a conversation this morning with the secretary and i asked is there a device currently in existence which measures greenhouse gas emissions within the geographical confines of the state of amont the answer was no they use a modeling system if an entity has a modeling system of its own and comes to the conclusion that greenhouse gas emissions objectives are not being met and brings suit as a result even though the secretary's model says something different that would not necessarily be a frivolous cause of action would it i don't know if a court would find that frivolous but you do notice that under b in the language that i'd read to you it talks about the greenhouse gas emissions inventory and forecast and i said that's the inventory under existing law so the what you're pegging it to the model of emissions in bremont and you are correct there's no device that magically monitors all greenhouse gases in bremont it is a is a modeling process based on various data points but the language in this section takes it to the inventory and forecast that is based on a and r's model so that's the baseline it pegs it to that if someone comes into court and makes some argument that that's inherently flawed and there should be some other model i don't know if the court would consider that or not that's hard for me section two i do have a question about that the word defendant is all encompassing but the cause of action is specifically targeted at the secretary is there a reason or is there a possibility of some other defendant appearing in something like this or is it merely supposed to be targeted to the secretary it's targeted to the secretary so is there a reason why we use the word defendant here as opposed to saying the secretary maybe the word reasonable cost i think you could say secretary i had assumed that a and r would be represented by the ag's office so it might be you know state of vermont might be the defendant under the depletings i don't know but it's really the a and r we're not thinking that there's some outside non a and r non state of the vermont entity that's a defendant we simply use or i simply use plaintiff and defendant to try to model it on other statutes and try to make it as clear as possible i just didn't know whether there was another anticipated possible defendant out there that we weren't talking about not that i can think of i see that the ag's office is on and they're going to testify after me and should definitely ask them the same question but i read that as a and r in essence okay um that finished show or luke i have a question about um if the state is if the secretary or the defendant is sued other than court cost reasonable lawyer's fees etc there's no monetary damages to the state there's no that's correct there's no damages under this cause of action you are correct okay so they they wouldn't receive a million dollars because the agency refused to or didn't or failed to the court found the agency failed to update the rules well it would be the consequence of the agency if the court found the agency failed to update the rules would there be a order to i mean i the one i think of is is lake champlain or our lakes you know mainly lake champlain in the cleanup and the order from the courts to clean up would there be that kind of order could that so i mean i guess under this talking from an appropriations as well as a judiciary standpoint would this create a situation where instead of educating kids the court would say you've got to put resources to this particular effort under this cause of action this language in this bill there are no damages no for example punitive damages there's costs and fees whether costs and fees could add up to a million dollars in some cases i don't know but there's no damages okay there might be a cause of action under existing law or a different theory that someone could bring i think lake champlain had to do with federal law and was very different type of situation but would someone bring a case that alleges other grounds that might result in damages perhaps but under this bill there's no ability in this cause of action in this bill to impose damages does that answer your question yes great so we reviewed the language in the bill that's all the language about the cause of action establishing the bill what i want to do is briefly review existing law so separate from what's in the bill under existing law there's an action pursuant to rule 75 which i think you're aware of and there's also an action pursuant to three bsa 807 which is part of the vermont administrative procedure act seeking a declaratory judgment on a rule so this is existing law and i want to go through them quickly and then talk about what's similar or different compared to what's in the bill so let's begin by looking at rule 75 and what rule 75 did is it in essence combined and took the place of a number of previously common law writs including the writ of mandamus which is a common law writ to require a state official or state entity to undertake an action it's required to do so this would be scenario a where a and r is not engaging in rulemaking this is a cut and paste of some of the language from rule 75 i'm not going to read through all of it it's not all the language but what it indicates and i've highlighted some of the more important parts is that an action or failure to act by an agency can be litigated pursuant to rule 75 and you'll see under b there's language about what the complaint is supposed to include and the demand for relief under c there's time limits which is a little different than what's in the bill so it basically says if there's no time lit time limit specified by another statute complaint must be filed within 30 days or within six months after expiration of the time in which an action should have occurred then there's language under d about the hearing and judgment and under e appeal are there any questions about rule 75 so this would be most relevant to scenario a where a and r is not engaging in rulemaking nope you also have and this is what i think would be most likely to be pursued a cause of action under three vsa 807 for a declaratory judgment on the validity or applicability of rule and this is something that the representatives from the ag's office uh engaging in our experts in and this is what i'm sure they'll tell you more about so three vsa 807 states that the validity or applicability of a rule may be determined in action for declaratory judgment you'll notice it's in the same court as a cause of action would be brought pursuant to the bill now what are the bases when you bring such an action the grounds upon which a court can invalidate a rule include that the rule exceeds a legislative grant of authority the rules contrary to legislative intent or and this is most important it's arbitrary unreasonable or contrary to law i want to summarize for you what might be arbitrary or unreasonable because you'll see it's a fairly high standard to meet the term arbitrary is actually defined in three vsa 801 and it means there's no factual basis for the decision made by the agency that was engaged in rulemaking the decision made is not rationally connected to the factual basis asserted for the decision or the decision made by the agency would not make sense to a quote reasonable person and that definition also explicitly cross references two cases by the vermont supreme court and in those cases one of which is called town of sureborn the court stated that in determining whether an action of an agency is arbitrary the court must determine whether the decision makes sense to a reasonable person even if the reviewing court might have weighed the factors differently and that the agency or department has wide discretion over what weight to give criteria and what conclusions to draw from them even if the board's proceedings or the agency's proceedings contains conflicting evidence the findings of the board or agency will all narrowly be upheld by the court in the second case that's cross-reference in the definition of arbitrary it's called buyers the vermont supreme court repeated some of this same language but also make clear that the court should not substitute a judgment for that of the rulemaking body so if you look at 807 you look at the definition of arbitrary you look at the vermont supreme court cases interpreting that term you'll see that it's a fairly high standard because there's a lot of deference given to the agency or department that's engaging the rulemaking process are there any questions about that okay and then last i wanted to now pull these threads together you talked about one question is your power point on our webs on our committee page yes it is thank you yes it is thank you um and so what i want to try to do is now pull these threads together we talked about what's in the bill the new clause of action we've talked about existing law and so i want to now compare the two and see what's what's different between the two so if so you'll see under scenario a in the bill section 594a it expressly refers to rule 75 uh the time in which to bring the action under rule 75 is 30 days or six months under the bill it's one year there's also a notice provision that's different so in a lot of ways i think a is quite similar to an action under rule 75 except under the bill there's a notice provision and the time period in which to draw to bring an action excuse me is greater now if you look at scenario b i have on the screen the various time periods under current law 3 vs 807 it's within one year of the effective date under the bill it's one year after filing the emissions inventory and in addition under the bill there's that same notice provision where the litigant has to give notice to a and r now what's really different under the cause of action in the bill is unlike under 3 vs a 807 the court to rule against a and r would have to find that a and r's rules or the deficiency in those rules was quoted substantial cause of the failure to meet the emissions reductions requirements and that's something we've already talked about at some length and in addition if the court finds that a and r is taking or seeking to take prompt and effective action it can give a and r a period of time to do so so these are the differences between the new cause of action in the bill and existing law so there's been question raised and senator sears i think you asked this question in another committee earlier and other people have asked it well so what's new what's different is this new cause of action even necessary and whether it's necessary or not i think is largely a policy call for you to make but it is clear that there are remedies under existing law i think under any cause of action whether it's under the bill or under rule 75 or under the administrator procedure act you still have to establish dandy and particularize harm and that's what we talked about a few minutes ago however adding this language to the bill certainly provides certainty that there is a cause of action to enforce the greenhouse gas reduction requirements so it does make that very clear and i think under b under the bill it is a little different than what you might find under a cause of action under the administrator procedure act so there is i think it does add a little bit it is a little bit different under d in the bill as i summarize earlier nothing is taken away and so what you really have is you have a menu you might have rule 75 if it applies you have the administrator procedure act if it applies you might have another cause of action if it's applicable and then you have this new cause of action set forth in the bill so a litigant would have a potential range of options and that indeed might be as often in cases there might be multiple alternative pleadings under the different causes of action so i tried to go quickly because i know you have a bunch of witnesses but are there any questions or anything you want me to know i i i think you know you've done a great job of helping me to understand at least what in terms of the cause of action there's and that's that's my that's judiciary's only only focus here i know there are a number of other questions about the bill and that's the necessity of it but it our committee really should be focused on that and i really appreciate it very helpful i wonder if i see uh rod mcdougal and uh laura murphy i believe we're here from the attorney general's office and um either you could talk together or separately or any comments you have from the attorney general uh whether the attorney general's office supports opposes or is neutral sure uh thank you senator and thank you thanks rob yeah good to see you i gosh you know pfo a goes away and you yeah it doesn't go away i'm sorry it does not go away the the remedies have and i was just driving over the poles in my road from the final uh lines extension um so pretty good feeling even though it's bumpy no it's uh it's nice to see you again too senator and um the pfo a case has a long way to go uh in the in the spirit court but i'm glad to hear that the work is ongoing down there um the attorney general thank you for having us in and thank you to the committee for letting us speak the attorney general um supports this bill and the policies behind it um we're in a place right now where we can no longer rely on the federal government to act on climate um vermont has fallen behind its neighboring states in achieving its emission reduction goals uh the climate crisis is real and the time for vermont to be an environmental leader is now uh so from a policy standpoint we we support the bill and i understand that the um committee is asking us to speak about the causes of action section and so uh luke just did a great walk through obviously of the the causes of action section and there's not a whole lot to add to that um but laura and i are happy to offer a few thoughts today um the cause of action section obviously has um new causes of action um and also recognizes a third that's existing in law um so as luke said the first one um is the the agency fails to act if the agency fails to adopt the rule in a timely fashion um someone can bring a case under rule 75 to require that the agency that one is probably the simpler of the two uh that are new in the bill and and that's really a kind of either you didn't or you didn't and so um to the extent that there's concerns about um plaintiff's recovering attorney's fees and costs that'd be a very uh small i think attorney's fees and cost concern because you know it's really a black or white did the agency meet the deadline or did it not meet the deadline um the second cause of action is a little more um it's complicated the the second cause of action has where if the rules adopted um didn't meet the greenhouse gas emission requirements and so in that circumstance you know the case is brought within a year of the rule taking effect or within a year of the vermont greenhouse gas emissions inventory being published um in that case you really are getting at uh in court a question of did the rule achieve its goals or not and so that's where you may have competing experts you may have a lot more litigation deposition discovery that sort of thing to put the science into court to show whether the rule worked or not um so that one potentially there's some more exposure to fees and costs there on the state's part um but attorney general donovan believes that um the citizens of vermont should have the right to pursue legal remedies when the state fails to meet its statutory obligations to him it's a government accountability um the climate crisis is happening it's real it's the legitimate concern and so the the the risks and concerns about attorneys fees and costs being paid are trumped by the um idea that vermont has to act on the climate so that that second one you know just to be very clear that's where the the exposure to fees and costs uh is a little more significant uh and then the third cause of action is not a new one but it just in the cause of action section recognizes that um anyone can still bring an ap a rulemaking challenge as you can in existing law so you know like any agency that publishes a rule if someone wants to challenge uh the rulemaking process that happened you can still do that and so that's the third one there's no attorneys fees or costs associated with that in this bill um so that is a quick overview of the three causes of action that are there two new one existing i'll just note that in um the subsection see about the fees um i think in c2 um it says the state you know the defendant um if the case is um let me just get the language here uh if the the interaction brought pursuant to the section of prevailing party or substantially prevailing party that is the defendant may be awarded reasonable costs if the action was frivolous or lacked a reasonable basis in law or fact we have understood that um you know that's obviously different than a plaintiff has reasonable attorneys costs and attorneys fees and in other testimony and other committees in the house and senate we've noted that uh we've understood that to be a typo and that the state should also have the ability to recover attorneys fees there so it should say reasonable costs and attorneys fees just like the plaintiff um it has not worked its way into the bill yet but we've flagged that in every committee we've been in um so that's just one thing i'll point out um and less laura has something to add we're happy to answer any questions well i just i would ask luke if if there's a reason why that hasn't made it in it wasn't a typo um it certainly could be something that you change uh but the theory behind it was that the defendant a and r would be defended by the ag's office a ag salaries are already being paid by the state so we wrote it that there might be costs that could be recoverable but it wouldn't be that you're recovering the fees which might be more to uh ag salaries i don't know if that's accurate as you guys can correct me but that's why i was phrased that way well that does bring up an interesting question though um the the attorney general donovan the attorney general donovan attorney general donovan is on the record you just said that supporting this bill um but attorney general donovan would be defending the state is that a problem no no we um obviously we defend the state all the time every day and i think that we well hopefully you're defending the state when you believe no and so we um you know we we absolutely would expect to defend the state if a case was brought here and we expect that the agency would do the proper rulemaking to meet the goals and we would be ready to go into court to defend uh the actions that they took um to meet the climate plan goals um the rulemaking and so um we have no there's no concerns for us about defending the state um what's the rulemaking that's occurred um and so i only flagged that attorney's fees and cost fees because uh you know it seems like we should have the same ability to recover attorney's fees when frivolous or unreasonable loss of the file i guess um thank you other questions for the attorney general's office and laura if you want to chime in please do so thank you and nothing to add right now thank you just would like to say um i think we ought to put in uh if we aren't putting in the attorney's fees to the state like i see why according to rob but let's put let's put an amendment in that the state could get their costs it's a frivolous lawsuit the state has to hire all kinds of scientists to testify are you requesting are you requesting an amendment be drafted by luke yes we have costs in there now to be clear we right now that the state can recover reasonable costs if the action was frivolous or lack the reasonable basis in law so we have costs now it just was the parallel the plaintiffs we thought it made sense to add attorney's fees but so senator nick uh um be glad to do an amendment for you or the committee i think i just explained uh the reason why we didn't include yes fees and that was a salary issue right but if you'd like to do an amendment senator nick or i'd be happy to go number two in your list of amendments since n is before s look so just can i follow up with luke so luke do do do you think that costs are included there already maybe i misunderstood rob that we couldn't so right now a plaintiff that's the people suing a and r yeah can get um costs and attorneys fees yes right now the defendant state of ramon a g's office will only be able to get costs so that would be the cost of hiring the scientists that would be the cost of running some uh data analysis that etc okay so it can reimburse that the reason why we did not include fees and correct me if i'm wrong please uh the a g's on the video call correct me if i'm wrong well we thought his fees is more your salary the attorney's fees and since a g's are paid by the state and their salary is already being paid we didn't add recovering that also that was why we wrote it that way could be wrong now you tell me senator wouldn't that generally be interpreted as a court filing fee yeah i'm just telling you why we wrote it that way our logic it may there might be uh something i think i'm just explaining why we phrase it that way okay let's let's um senator nick you still have the floor so as i understand luke we don't need the amendment because the state could already the agency could already recover costs in a frivolous lawsuit not the attorney's fees they could recover the cost for scientists etc that they bring in to testify the way that you need or not that's a judgment call make no comment yes you basically summarize what is there what i was trying to right but they could not but rob is wanted to make specific i guess the attorney general i'm gonna say the attorney general wants to make it specific that attorney fees would be recoverable is that correct right but that's we have raised that in every committee we've been in that we think it's thank you senator white who's late to the subject and thank you very much for coming thank you and i'm i am sorry i apologize but and i won't comment on anything else except to ask this question on this particular issue do we normally allow um do we normally allow the attorney's fees to be recaptured to be repaid in any kind of other suit say we file a suit against a pharmaceutical company do we allow the your salaries to be recovered and if we don't then why would we hear and if we do in other cases why would we not hear lord you know the answer that one i don't there's not we looked at this issue i actually i actually don't know the answer to that in vermont i know there are other statutory provisions that provide for plaintiffs to recover attorney's fees for instance under the consumer product and public records i don't actually know the answer to the question about defendants at the federal level um there is a provision that allows for instance under some of the major environmental statutes attorneys the the government to recover attorney fees and costs if the lawsuit is frivolous so if you're looking at the federal model no typically include fees i don't know about vermont because i would say that if we don't in other other cases in vermont then we shouldn't hear also because it would be setting a whole new standard okay i um want to make sure we get the opportunity here from the administration so joe question comment i have two questions and rob lord first is we had a discussion a few minutes ago with luke about the term person as somebody who is eligible to be a plaintiff we used an extreme on belgium but let me um first say that if we were to enter into a regional agreement with other states and say for instance the state of new hampshire decided vermont was not living up to its objectives of reaching the stated um mandates by 2050 isn't the term any person giving someone within that regional complex the ability to step in as a plaintiff so senator your question gets to standing so it does say any person but a plaintiff still has to demonstrate standing before the court would have jurisdiction to hear the case and so the test for standing is a fairly high bar for a plaintiff plaintiff has to demonstrate basically three things first that they have suffered a concrete injury that is actual or imminent second that the injury is fairly traceable to the state's failure to comply with age 688 now and third that the court has the power to remedy the injury so any person has to meet those the standing test and so i'm not sure in your example of the court where fine standing or not frankly and i lower might have something to add to that um you know but that's my understanding is that standing is a pretty high bar in this instance whether even though it says any person well in the scenario that i get of someone who is within the geographical uh entity that is now a regional compact and vermont is perceived as not doing its part it's a pretty simple question do you think that somebody from new hampshire or one of the other compact states has standing under the scenario that you've just laid out for standing purposes so i think that gets to the second prong of that test whether the injury is fairly traceable to the vermont's failure to comply with this bill and so i don't know in a regional context if you can zero out the state of vermont from that region and say vermont is the reason why this injury has happened and the failure to meet the plan is the reason for that so i think you as you get to a bigger pool it's harder to trace something individually to one state and so i i don't know if standing could be met for example you gave senator let me ask it an easier way is it possible that they could actually have stand over for a minute i've got a something i've got to do yeah so let me ask you a different way is it possible that they could have standing they'd have to show that their injury is traceable to the state of vermont's failure and i'm not sure they could i personally don't i'm not sure they could in that example okay i'm the reason i'm bringing this up is i have a local issue right now with act 250 kingdom trails in the northeast kingdom is essentially being challenged by somebody from brattle borough asking for a judicial jurisdictional opinion on act 250 and right now the way things stand that person down in brattle borough is deemed to have standing to make that argument and the problem that i see down the road is if we have a geographical area a compact if you will on trying to reduce greenhouse gas emissions and the objectives for vermont are not being met can someone from the other states in that compact have standing to ask the vermont courts to enforce the expected objectives and i i don't know why that's it's seemingly a difficult answer i'm not sure why but it seems to me common sense would say they have met those three steps to obtain standing and if i'm wrong i'd love to know why okay i would just offer in addition to what rob said i think it may not really matter whether the state is part of a compact or not the question i think would be does the person whether it's a state or an actual person or some other entity have an injury that is caused by vermont's failure to mitigate climate change and so the injury would need to be tied to the actual lack of reductions in emissions that has been caused by vermont's failure and so being able you know one may be able to allege that in a complaint being able to prove that i think it's a little more complicated but really the injury should be tied to whatever vermont's failure is in terms of emission reductions and that could be someone it's not necessarily a state who's part of a compact but anyone who's really suffering from this this from this failure jeanette are you finished joe this could go on it could go on for hours i know and i don't want to do that okay so i i i just wanted to follow up on that but weren't we very clear that a lot of the degradation of our forests and our air was due to ohio's emissions and didn't we so i i don't think that was very hard to prove and so i i understand joe's concern here is i think that it it might not be very hard to to prove and if a person from brattleboro is claiming injury from a northeast kingdom trails thing then i mean i i i don't know but we we did seem to blame ohio for all of the degradation of camels hum yes and jeanette and i are exposing our age at the moment because we're part of that generation that fought acid rain floating across the skies and vermont was being harmed by that and i don't see that this is all together a different scenario okay uh to go back to the issue of oh luke there you are yes go ahead luke speak thank you it's just to add into what the bg's office was saying so in this cause of action the requirements of standing of showing the particularized harm all the other elements is no different than under current law any cause of action and even if this bill doesn't well if this language is taken out but the bill goes forward under rule 75 or under the administrative procedure act you would still have to show those same thing and so just to build on what the ag said i'm often asked well could someone bring a lawsuit sure lots of lawsuits are brought but if they're frivolous hopefully they're weeded out and in any lawsuit you have to show the standing you have to meet that threshold and no one can predict whether it would be met in a specific case but there has to be some demonstration of the standing to continue in court okay so uh just to follow up on the issue of the costs and attorney's fees i am thinking that uh i would like to do an amendment with regard to that what i'm thinking luke is that if our ag's office did not have the expertise to defend in the kind of lawsuit that might occur we might hire outside counsel whom we would have to pay thinking that i think we should have that in there uh i'd be glad to write that for you and we can talk offline if you want about that okay or we could have this discussion here i don't know if the committee wants to or not i don't know is the committee interested in that i mean i'm concerned that on on a big you know this could be very big cases a lot of expertise and then maybe us needing to hire some outside counsel as has happened occasionally on a case that we didn't have the in-house i i think since the attorney general brought that up um well the assistant attorney general brought it up um i'm happy to join you in that effort um and i think it makes sense okay so if you could do that please luke certainly uh go ahead senator sears any other questions for the attorney general's office um megan otul is here all right megan you're up julie morse here i don't know how you became megan otul oh she's here as well oh she's okay good all right um uh please um we wanted to hear from you on the cause of action we're only looking at the cause of action so um whether the administration for or other against other parts of the bill is really immaterial it's the cause of action that we're focused on so any thoughts that the administration has either in support or against the cause of action happy to hear excellent well thank you for the thank you for being here by the way my pleasure thank you for the opportunity to to meet with you all today um and and megan is is here and available to help answer questions as well um i assume most of you know her but she is the the lead attorney for our air program within the department of environmental conservation i want to start by saying that the administration remains committed to the greenhouse gas emission reduction goals identified in h688 and shares the sense of urgency that we believe is driving this legislation and the need to reduce our emissions and and enhance the resiliency of vermont's infrastructure and landscape in the face of a change in climate uh that said the administration and myself personally remain concerned that as drafted h688 sets up um for sets us up for litigation and delay as opposed to ensuring our focus remains where it needs to be which is on developing a comprehensive plan and then implementing it specific to the cause of action in the question you'd ask senator sears the cause of action is really focused on regulatory work and we see that as problematic as you know the h688 would establish a council and we're envisioning that the council might recommend a range of different programs funding mechanisms and incentives and the challenge with the cause of action would be that it cannot compel anything other than the regulatory work of the agency of natural resources which means we may be left with no choice to pursue less efficient more costly programs um and while our the other piece i would flag for the committee is that while our authorities under chapter 23 are significant uh they are not unlimited we are interpreting that the language in h688 does not provide the agency with new any new authority or power so for example we can't create new regulatory programs we can't raise taxes or fees and we are concerned that there's some perception that the legislature is giving us more authority than we're actually receiving and will also set up potential challenges would offer that the administration is consistently advocated for an approach not unlike the approach we've taken in clean water which is where we've we would start by identifying a suite of interim actions funding pools and to ensure continued progress as the plan's being developed some of those measures were reflected in the governor's f y 21 recommended budget although i know that that is not necessarily where we're at today we've also would then move to develop a robust implementation plan that would include both regulatory and voluntary measures figure out how much it would cost to do all of those things and establish the amount of funding necessary to support implementation and then working with the legislature to identify and ultimately secure funding sources my concern is that that in moving forward all the way through implementation without having a clear sense of cost and the types of measures that will be required we don't have that kind of framework or certainty identified at this point in time and we really need without belaying the sense of urgency that clearly surrounds our work on climate change we need to approach that urgency prudently and i'm concerned that each 688 urgency may be a bit short-sighted and end up causing unwanted delay in the middle term with litigation taking center stage i think that was pretty clear i uh are the questions again i do have a question and that the attorney general defends the state against lawsuits but the attorney general has come out in favor of the bill does that put you in a difficult position in your view or is that not a difficult position i i don't see that as a difficult position in in large part because we we support the intent of the bill right and and there would be the administration to the extent this is the legislature's direction is committed to doing our our level best um to implement the the statute and the requirements given to us i think the challenge from from my vantage frankly is i feel like we're being put in the untenable position of being set up with very low likelihood if any of success um as you're aware yesterday in the appropriations committee the funding for this work was was removed i know that that's the the same approach the appropriations committee is taking with with every building i actually made the motion so i know right um i know that i know that that's consistent with the approach the appropriations committee is taking on every bill at this point in time um but to the extent that this bill advances and the funding becomes an afterthought it's just further challenges our ability to to be able to do this work and do it successfully understood but um well we're not in the appropriations committee senator white so this is a completely unrelated question but why are you asking but megan is your name also campbell yes that's my maiden name i i didn't know that and i just have to say that my committee deals with a lot of law enforcement issues and i regularly invoke your dad's name as the way cops should be thank you i've been thinking a lot about that lately too i bet thank you well thank you for that editorial comment comments i just i just couldn't resist because i never have contact with megan oh well now you now you do i don't know how to respond are there any other questions for either the secretary or for megan megan do you actually work for the secretary or for the attorney general um i'm in the office of general counsel in the department of environmental conservation so you're not connected to the attorney general that's correct secretary morris is my client okay so is there a does would you be able to defend the agency for failing to for example for failing to achieve the council's so typically um when the attorney general represents the agency of natural resources we we do work very closely with their council and i work with robin and laura and and other council in the environment section routinely in in their work defending the decisions that that the secretary has made okay other senator benning so megan sometimes attorneys lose cases let's assume for the moment you lose the case and directives have to be made to achieve the objected mandates what comes next so um i think it depends on the particular challenge um that we're defending um in the cause of action section um but and robin laura feel free to jump in here um but i i'm you know if we are uh directed by the court to um uh revisit our our rules um and uh revisit them you know substantively to um uh achieve the mandates in the bill um then i suppose that that would be uh um you know what would have to happen next is that we would revisit that and then it would also be a a revisitation of the the plan um that the climate council has developed um to understand you know what else needs to happen and what other authority we might need um to actually achieve the goals if the authority needed to achieve the goals meant imposing on individual citizens specific restrictions in order to decrease greenhouse gas emissions do you have that authority at that point or would it have to come back and go through the legislative process so um under chapter 23 in title 10 the agency has general authority to um take to to adopt rules to um reduce the emission of air contaminants and greenhouse gases fall within the definition of air contaminants in in title 10 so um we that's that is the general authority that we have now and and we do typically use that broad authority when we implement or when we adopt rules to um to reduce emissions of air contaminants so if it is determined by the agency that the only way to achieve the stated goals mandates i have to switch that word the stated mandates is to ban all use of internal combustion engines do you have that power um well i i think that's that's a question that's come up a lot and i know that that rob and laura specifically answered that question um when they gave testimony um in the house on this bill so i'll certainly defer to them as well um but i i think that a rule that um contemplated the banning of internal combustion engines um you know would obviously have to meet all the procedural requirements of the administrative procedure act and then it would also have to be substantively valid um there's also issues of federal preemption that come into that question um the state of vermont is um preempted from regulating emissions from motor vehicles except to the extent that our rules are identical to the state of california so um that's another issue that would have to be contemplated in that situation um but it definitely would welcome rob or laura to to add to that answer as well rob or laura do you want to comment laura do you want to think that question nothing to add to what megan said i think that's exactly right the any sort of ban like that would need to meet various requirements including constitutional us constitutional issues as megan explained so if i heard you correctly as long as it meant whatever california was doing at that moment in time that would effectively meet federal requirements um yes if uh if to the extent that we are regulating motor vehicle emissions they need to be identical to the state of california okay other questions um senator white i i'm going to adjourn this portion of the meeting um of senate judiciary and i thank all of you for joining us as well as luke for all the help um and uh there'll be a debate on the senate floor that's for sure um but senator white you missed my earlier comments to thanking the committee for its extraordinary work during this kovat 19 pandemic and getting some very tough bills through this committee and um i really do appreciate that i also complimented our staff and including peggy delaney for all the hard work as well as brand eric and michelle so i wanted to add that voice to you you weren't here and i do really appreciate it's been extremely difficult working remotely but we've worked together as a team and i'm really thankful for that um thank you and i should thank you for your leadership thank you um and if you'd like to vote on state deeds yes janette life of state needs you have the we voted out life of state needs 302 if you'd like to be recorded as a yes if you think people should be able to take care of their estates as long as they don't use it to stick um their nursing home bills to the rest of us because of refusing to um because i'm wanting to leave it to their kids yes well thank you yes you voted yes technically that was the enhanced life of state bill right yeah all right thank you and so uh unless there's any other yes senator other thing um janette or uh joe do you want to sign on to the amendment that state be able to recover costs and attorney's fees sure and that doesn't include our own attorney's fees right just external attorney's fees well we won't have any in-house as i understand it because there are people are on the salary right as long as you might need to clarify that as long as it's clear that if because i don't want us to be in a position of making a different decision for this than we do for everything else okay so you want to say something for outside counsel something external attorney fees can that work luke i'll write whatever you want what i written was attorney's fees um i don't know so i think you'd have to decide what you want i can write it i'm not certain how it would play out maybe the ag's office could give some thoughts on that i don't think there's time because uh this is coming up right so so rye wrote was just adding in attorney's fees no limitation i'd say that would be if you want me to limit it i could i'm not quite certain how that would play out in the real world that's all i'm saying if i can comment here my only concern is that if we don't do it for other issues i think that doing it here starting uh setting a precedent is there is not part the right thing to do without a lot more testimony if we do it in other on other issues and other cases then it's fine but i think that we shouldn't do something new here i mean that's my i guess you'd prefer not to have your name on the the difference the difference this is said we have to go to another meeting i have to go to okay so okay joe do you want to be on sure okay so i'll be the three of us three of us and gotcha thank you so i'll need to get it we're just following the attorney general's lead it's on its way thank you very much thank you thank you everyone thank you everyone i may not be here this afternoon so if i'm not there just know that i'm with you in spirit i'll see you all in august and let me know if you need anything between now and then okay yeah we're not meeting tomorrow so thank you Peggy