[G]ov. Phil Scott vetoed a bill Tuesday that would allow Vermonters who are exposed to toxic pollution to sue polluters for the cost of monitoring for medical conditions.
In a letter to lawmakers, Scott said the legislation would have forced companies to shoulder an expense that could hurt their ability to turn a profit.
Under the legislation, Vermonters who have been exposed to toxic substances from a large company would have the right to sue for medical monitoring — even if they do not yet have an illness arising from the chemical exposure. A judge has to approve the claim.
Normally a person must prove that they’ve been injured, or that they’ve contracted an illness, for a claim to succeed. This bill would have given Vermonters a right of action before they fall ill. It would require large polluters to pay for medical monitoring for the injuries and illnesses that victims might experience, in the future, as a result of toxic chemicals that a particular polluter released.
The bill says that for a claim to be valid, a company must have committed tortious conduct, such as negligence, battery or trespass; the bill would require that that tortious conduct exposed victims to concentrations of the toxin above normal background levels; the bill requires that victims prove they’re at an increased risk of contracting specific illnesses as a result of a company’s toxic pollution; and the bill would require that medical monitoring be awarded to victims only when monitoring is necessary.
The governor says that, under the bill, anyone at all who is exposed to a chemical would be eligible to receive unlimited medical monitoring, even when no illnesses are proven to result from the exposure, and even when the person exposed is no more likely than anyone else to contract a disease.
The state’s economy would be devastated if Vermonters, even before falling ill, were able to sue companies that exposed them to toxic waste for the cost of monitoring for diseases caused by those toxicants, Scott said in his veto letter.
“The level of liability and uncertainty this legislation creates for employers could prove catastrophic for Vermont’s fragile economy, and the bill establishes a standard that does not exist anyplace else in the country,” the letter continued.
Currently the courts or the legislatures of 13 other states have recognized and established the right to sue for medical monitoring that S.197 would establish.
Vermonters exposed to toxic pollution can already take their cases to court, Scott said.
Environmentalists said Scott misrepresented the issue in order to help corporate bottom lines.
“He’s prioritizing corporate interests instead of protecting Vermonters, so no surprise there,” said Lauren Hierl, political director with Vermont Conservation Voters.
Sen. Brian Campion, D-Bennington, said he was unsure what Scott meant when he referred to Vermont’s economy as “fragile.”
“I can only speak for myself, as a member of the [Senate] Finance Committee, but I have not heard that word ever used by one of our economists,” Campion said.
Scott’s spokeswoman, Rebecca Kelley, said the governor’s “fragile” characterization was referring to the fact that Vermonters are aging out of the workforce while the manufacturing industry is in decline.
“Given all these factors, Vermont’s economy cannot afford the loss of any major employers – which means job losses, lost revenue to the state, lost workforce and which makes us less attractive to working families looking for good jobs,” Kelley said in an email.
Vermonters’ per capita real personal income in 2016, at $50,084, was higher than that of 31 other states, and higher than the U.S. average of $49,204, according to the most recent available statistics. Vermonters’ per capita real personal income grew at a rate of 2.2 percent between 2015 and 2016; the same figure for the U.S. as a whole measured 1.6 percent.
Scott’s characterization of the bill’s details likewise appears to have been intended to confuse or mislead readers, said Jon Groveman, policy and water program director at the Vermont Natural Resources Council.
It’s untrue that the standard of liability in S.197 would be unique to Vermont, Groveman said, since that standard already is used in a quarter of the states.
Vermonters can take their case to court when they’re exposed to a company’s toxic pollution, Groveman said, but there’s no established right in Vermont for residents to receive medical monitoring costs from polluters before they fall ill. Courts could just as easily deny such a claim as grant it, Groveman said.
The standard contained in S.197 was actually taken in large part from existing federal law, said Sen. Dick Sears, D-Bennington.
Hundreds of residents in Sears’ and Campion’s district had their wells poisoned by former Teflon-products firm Chemfab. The pollution was discovered in 2016, and they remain mired in the courts and responsible for their own bills to monitor for illnesses Chemfab’s pollution is known to cause.
Cases like these often take up to a decade, Sears said.
Lawmakers removed a portion of S.197 that would have dramatically increased polluters’ liability for the harms they might cause, and limited the scope of the medical monitoring portion of the bill that remained, in hope of getting the bill past Scott’s desk, Sears said. Those concessions were to no avail.
Lawmakers won’t attempt to overturn the veto, Sears said, since they lack the votes to overcome Scott’s Republican supporters at the Statehouse.
Sears said he and Campion will work next year to bolster Vermonters’ legal rights against polluters who harm others.
