The Senate Judiciary Committee is recommending the upper chamber attempt to override Gov. Phil Scott’s veto of legislation that would give individuals the right to sue companies for the cost of monitoring health issues caused by toxic pollution.
With a 3-2 vote, the panel decided against scrapping the bill, S.37, to allow a recent federal court ruling take its place.
Senate leadership had planned to mount a veto override before the legislative session began. But a late December ruling by U.S. District Court Judge Geoffrey Crawford, finding that people can seek damages for the cost of monitoring health issues caused by pollution, forced Democrats to reconsider.
Senate President Pro Tem Tim Ashe, D/P-Chittenden, said Tuesday he would let the Judiciary Committee decide if the court precedent is “a wise alternative approach” to legislation passed last year.
“And if it says it’s not, then we will go forward with the veto override,” Ashe said. “If it says that there’s an ability to craft something different based on the court ruling that people feel good about, we would do that.”
The five-member committee heard from Michael O’Grady, a lawyer in the Office of Legislative Council, and Ken Rumelt, an attorney and professor at Vermont Law School, during an hours-long legal discussion Wednesday.
The majority of the senators found there were key differences between Crawford’s ruling and the legislation, making a veto override worth the effort.
The legislation includes exemptions from liability for municipalities, and does not apply to farming practices, which could include pesticides.
The Crawford decision allows for no such carve-outs.
The court ruling also requires proof of “significant exposure greater than background levels” of pollutants. The Senate bill did not require a burden of proof for individuals.
There was also concern from lawmakers about language in the Crawford decision that could potentially bar people from receiving enough compensation to cover the cost of monitoring procedures.
Sen. Joe Benning, R-Caledonia, said it was his understanding the governor would support and sign legislation that mirrored the Crawford ruling.
But while Benning and Sen. Alice Nitka, D-Windsor, were inclined to work with the federal court ruling, the other three Democrats on the committee were not.
The committee chair, Sen. Dick Sears, D-Bennington, who is one of the sponsors of the legislation, said he was not willing to throw away the work and compromise on the medical monitoring bill in order to work on a new piece of legislation that incorporates elements of Crawford’s legal decision.
“I feel blindsided by the process, quite frankly,” Sears said of being asked to reevaluate legislation he felt had already been tweaked to meet the concerns of business owners and the governor.
“I don’t want to start over,” said Sen. Jeanette White, D-Windham. “I’m ready to try for an override and if that fails then we can start over again, but I don’t want to start over now especially since my questions have been answered.”
In an interview Tuesday, Bill Driscoll, vice president of Associated Industries of Vermont, said he would have preferred the committee work with the Crawford decision.
“A lot of the concerns for the bill is based on uncertainty and the effect on companies, insurance companies, and whatnot,” Driscoll said.
“Our concern is, obviously moving forward, future potential cases what’s going to be the roadmap? What’s going to be the criteria? And we feel that we can live with the Crawford decision,” he said.
Sears said he expects the full Senate to take up the veto override within the next two weeks. However, the path to overturning the governor’s decision is far from certain.
When the Senate voted on the measure last year, it passed 19-11. But an override requires a two-thirds majority, meaning Senate leaders would need to flip one vote to successfully reverse the veto.
The Senate voted twice last year on medical monitoring bill. The first time around, it passed 21-8. Two senators flipped on the second vote: Sen. John Rodgers, D-Essex/Orleans, and Sen. Joe Benning, R-Caledonia.
Rodgers has said he changed his mind after hearing from more businesses that were worried about the bill. Benning was the only Republican to cast a yes vote either time. The other Democrats who voted against the bill were Mazza, Sen. Jane Kitchel, D-Caledonia; Sen. Alice Nitka, D-Windsor; and Sen. Bobby Starr, D-Essex/Orleans.
Both Benning and Nitka said they were not satisfied with the legislation during committee discussion on Wednesday, signalling their votes on the floor won’t change.
Supporters of the bill have been pressuring to Rodgers in the run-up to the override vote. But Rodgers was adamant Wednesday that unless something changes, he will not be voting in favor of the medical monitoring legislation.
“I’m just not compelled to override the governor’s veto at this point, unless somebody can present me a case that changes my mind,” Rodgers said before adding that he is not sure what the final roll call will look like.
“I don’t count. I just vote,” he said.
Correction: A previous version of this article stated without supporting evidence that Senate leadership is applying pressure to Rodgers.
