[S]enators invited Gov. Phil Scott’s administration secretary Thursday morning to explain why the governor has threatened to veto a bill central to the state’s efforts to control water pollution. Susanne Young didn’t show up.
It was the latest in what has become a central dispute in this legislative session over where Vermont is going to get the money to clean up Lake Champlain.
At 10:45 a.m., when Young was scheduled to appear, the visitor’s chair in Senate Natural Resources remained empty. In her absence, senators expressed bewilderment and frustration with the administration.
Committee chairman Sen. Chris Bray, D-Addison, had asked Young to offer an explanation for Scott’s opposition to S.260, a bill that would establish two groups to formulate funding methods for a massive, federally mandated effort to reduce water pollution in Vermont.
Young offered to explain Scott’s stance to Bray personally, but Bray said senators who had unanimously passed the bill deserved a written explanation, or at least a committee appearance. Young said senators could glean Scott’s stance from testimony other administration officials had delivered to House committees.
Bray said the response showed contempt for the Senate, whose members are usually afforded testimony in person.
Young said Thursday that she told Bray two days ago that she had no intention of testifying. She said she didn’t understand why Bray was spending his time on S.260.
“Only he can answer why he chose to proceed on S.260 when there are several bills in his committee relating to water quality that will advance our collective efforts to implement Act 64,” she said, referring to the state’s Clean Water Act.
Scott has promised to block any bill that contains a new tax or fee, a position that he says applies to S.260 because it calls for a study of whether the state should levy a fee to support pollution abatement efforts.
Young and Natural Resources Secretary Julie Moore appeared at the governor’s weekly press conference Thursday afternoon to explain their position on the bill. Young explained how the administration had tried to convey its position on the bill to senators, which she noted has already been passed by the Senate and is now under consideration in the House.
Moore highlighted specific language that the administration believes improperly orders the governor’s office to implement a fee because it violates the separation of powers between the legislative and the executive branches. The administration cited the same rationale earlier in the legislative session when Moore refused to provide lawmakers with options for raising taxes or fees to support water cleanup in a report that was required under state statute. (Scott signed the provision for the report into law last year.)
The new legislation, S.260, requires the Clean Water Board, which is made up of the governor’s cabinet members, to develop a proposal that “includes how a per parcel fee or other fee shall be assessed to property owners in a manner that corresponds to the effect of the parcel on water quality.”
Scott said the meaning of the language as written is clear.
“From my perspective when a bill proscribes that you’re going to come up with a fee, that would tell me that they’re telling the executive branch what to do and that’s not in their purview,” he said. “If they want to come up with a fee or something, just do it, they’re the Legislature, just pass one.”
In a letter to lawmakers on March 20, Scott listed bills he opposes, including S.260. In the same breath, he wrote that his administration looks forward “to working with [lawmakers] to resolve these concerns and reach an expeditious conclusion to the legislative session.”
Such overtures of cooperation have confused lawmakers, Bray said Thursday.
The precise nature of Scott’s constitutional objection to S.260 “is a bit mystifying,” Bray said. At least one attorney for the Legislature, Michael O’Grady, has looked into the matter and found there is no issue, he said.
“Maybe some of their concerns will go away once we talk,” Bray said. “The only way to move forward is to have that discussion.”
This week’s debate over the bill has been set against the backdrop of an EPA “report card” published this week giving Vermont a passing grade for the state’s early steps to reduce Lake Champlain’s water pollution. That passing grade is conditioned upon Vermont securing long-term funding for the effort within a year.
“It is important that the state establish a long-term revenue source” for reducing pollution in the lake, the EPA said, “since this is critical to successful and full implementation of the TMDL.” Total Maximum Daily Load, or TMDL, is the federal order mandating less pollution in Lake Champlain.
So far, S.260 is the only piece of legislation that might accomplish that long-term funding.
The bill has detractors on both sides of the issue.
State Treasurer Beth Pearce urged lawmakers on Wednesday to skip the study groups that S.260 would establish, and adopt a long-term funding plan this legislative session.
Pearce told the House Committee on Natural Resources, Fish, and Wildlife that legislators are faced with two choices: “Act, or defer action.”
“My belief is that S.260, as it currently exists, is deferring action,” Pearce said.
For two years, the treasurer has urged the state to implement a fee system to support phosphorus abatement from farms, municipal sewage treatment plants, parking lots and roads. Phosphorus pollution feeds toxic algae blooms that have spread in Lake Champlain, leading to beach closures near Burlington and green soupy sludge on the surface of Mississquoi Bay and Lake Carmi in Franklin County.
The ongoing pollution problem will hurt Vermont’s $2.5 billion tourism industry, Pearce said. Property values for 37 homes near Lake Champlain were recently marked down by $1.8 million because of water pollution, and property values for other homes in the vicinity will fall at a similar rate if policymakers don’t do something fast, she said.
“We do not need to do another study” in order to figure out a long-term funding source to cut the state’s water pollution, Pearce said. “You’ve got the information to do it now. Let’s do it now.”
Scott has said that because he has a plan to fund clean water efforts in the short term, there’s no need for a “knee-jerk” effort to raise new revenue.
But in official testimony to the House, the administration has cited other reasons for opposing the bill. Moore has told lawmakers that S.260 violates the state Constitution, duplicates previous work, and would allow Vermonters to sue government officials for failing to uphold the law. It says nothing about Scott’s opposition to new fees and taxes.
Scott doesn’t have a plan for securing the long-term funding source required by the EPA.
If Vermont doesn’t come up with plan in the next 12 months, the EPA may pursue other remedies, Emily Bender, the EPA Region 1 spokeswoman, said in an interview Thursday.
The federal order requires Vermont to reduce the rate at which industries, developers and municipalities pollute Lake Champlain.
The EPA’s new remedies could be far more expensive than the methods the state agreed to under the 2014 order.
Most of the pollution abatement in the order is to come from reducing phosphorus from farms. Under the federal Clean Water Act, the state has jurisdiction over farm derived phosphorus from manure and feed, and the federal government retains jurisdiction over water pollution from other sources, such as municipal wastewater treatment plants.
The EPA has said it’s far cheaper to reduce pollution from farms, which are the primary source of phosphorus, than it is to upgrade wastewater treatment plants.
The order leaves it up to Vermont to enforce its own water-quality laws.
But if Vermont doesn’t fund the pollution-reduction steps the state has agreed to in the Lake Champlain TMDL, the EPA can impose pollution control standards that would require the state to upgrade wastewater treatment plants.
Whether the EPA would force Vermont’s hand, particularly under the administration of President Donald Trump, which has been rolling back environmental regulations, is debatable. Bray said that’s beside the point.
“Nothing we’re talking about here is optional: This is mandatory work required by law,” he said. “This is a nation of laws, and the Clean Water Act is existing law — so, whether we have an administration in Washington that seems particularly inclined or disinclined to enforce the law, I think we should hold ourselves to that standard.”
Reporting contributed by Colin Meyn.