[F]or the second year in a row, Gov. Phil Scott vetoed legislation that would establish an explicit right for Vermonters to sue polluting companies for medical monitoring costs.
In his veto letter, Scott said that his concerns about scaring away businesses, who said the law would increase their insurance costs due to the legal exposure, outweighed the health benefits of the bill.
“Numerous Vermont employers have expressed concerns to me, and to Legislators, that the unknown legal and financial risks, and increased liability, is problematic for continued investment in Vermont,” he wrote of S.37.
“If Vermont manufacturers and others cannot secure insurance or cover claims, then our economy will weaken, jobs will be lost, tax revenue will decline and, ultimately, all Vermonters lose.”
One of the bill’s co-sponsors, Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee, said Monday he was “extremely disappointed” by the decision.
“We’ll do the best we can to get an override, but the business interests won out,” he said.
The bill passed in the House with 100 votes — exactly enough to override the governor’s veto pen. In the Senate, the proposal passed 19-11, falling one vote short of the 20 that would be needed to override a veto.
Scott laid out the other actions taken during his administration to ensure access to clean water and protect Vermonters from toxins. And he endorsed an amendment proposed this session by Rep. Scott Beck, R-St. Johnsbury, which he said provides a “path forward” for the bill.
The Beck amendment, favored by industry representatives, set more stringent criteria for people in an exposed area to receive medical monitoring.
Sears and Brian Campion, also a Bennington Democrat, sponsored S.37, in response to the contamination of private wells around Bennington with PFOA from the ChemFab plant in town. Support from environmental groups over the past two years has been matched by opposition from industry.
The right to medical monitoring would have applied to companies with 10 or more employees — or of 500 or more employees at multiple facilities — in the mining, manufacturing, transportation and utility sectors.
“We don’t want taxpayers paying, we don’t want victims paying, we want the polluters to pay,” Campion said in an interview last week. The state Department of Health offered had offered Bennington area residents testing for PFOA levels in their blood after the contamination was discovered.
The governor vetoed a similar bill last year over concerns from the business community.
However, Sears said he thought that lawmakers had struck a compromise with the administration this year, by agreeing to take out “strict liability” from the bill. Removing that section raised the legal threshold for requiring companies to pay for medical monitoring.
“I thought when we agreed to drop strict liability we had a path through the governor’s office, but apparently not,” Sears said, noting that representatives of the Agency of Natural Resources and the Attorney General’s Office took part in negotiations over the legislation.
Even after strict liability was removed from the bill, industry groups continued to vocally oppose it. Industry lobbyists urged lawmakers this session to wait for the outcome of a lawsuit advancing in federal court.
Under current law, it’s “not definitive” that a court in Vermont would find that a plaintiff has a right to medical monitoring, Rep. Martin LaLonde, D-South Burlington, said in an interview last month. While courts in 16 states have approved medical monitoring claims, courts in 12 other states have ruled that plaintiffs do not have a right to medical monitoring.
A group of Bennington residents exposed to PFOA-contaminated drinking water is suing Saint Gobain Performance Plastics, owner of the former ChemFab plant, for long-term medical monitoring and property damages. Advocates have said the medical monitoring test put forth by Judge Geoffrey Crawford is less stringent than the proposal in S.37
Jon Groveman, water and policy program director for Vermont Natural Resources Council, said in a statement that Scott had deprived Vermonters exposed to toxic contamination with “a bit of fairness” by vetoing the bill.
“Instead of holding polluters responsible for medical costs and damage to Vermont’s environment, he has sided with corporate lobbyists that have misinterpreted the impacts that S.37 will actually have on business in Vermont,” he said.
He added in an interview that VNRC and other advocates did not support the “Beck amendment,” which he feels “created a standard which would have been much harder for Vermonters harmed by toxics to meet.”
Associated Industries of Vermont applauded the veto, echoing Scott in urging lawmakers to pursue a softer version of the bill.
William Driscoll, vice president of AIV, which said it was joined by 40 other industry groups in opposing S.37, insisted that they do not oppose medical monitoring liability, but simply want it to be done in a way that is consistent with other states.
“Companies that act negligently and put people at significant risk of developing a serious disease should be accountable,” Driscoll is quoted as saying. “But we should have fair and reasonable standards for determining liability like the other states around the country that have addressed this issue.”
