Energy & Environment

AG calls Global Warming Solutions Act constitutional; Scott admin still has reservations

Attorney General TJ Donovan, left, outlined on Friday how his office will enforce measures ordered by Gov. Phil Scott, right, to stop the spread of Covid-19 in Vermont. Photos by Kit Norton/VTDigger and Mike Dougherty/VTDigger
Attorney General TJ Donovan, left, said the Global Warming Solutions Act, passed by the Legislature in an override of a veto by Gov. Phil Scott, right, is constitutional. Photos by Kit Norton/VTDigger and Mike Dougherty/VTDigger

Vermont Attorney General TJ Donovan told the Scott administration Wednesday that his office does not believe the Global Warming Solutions Act violates the state Constitution.

On Thursday, Donovan issued a statement pledging to defend the law against any constitutional challenges, including any brought by “the governor or his administration.”

“The Global Warming Solutions Act is constitutional and good policy,” Donovan said in the statement. “Vermont should be a leader in addressing global warming and should do what we can to meet our climate goals. There is nothing wrong with holding government accountable to the will of its people.” 

Republican Gov. Phil Scott vetoed the Global Warming Solutions Act in September, but the Democratic-controlled Legislature overrode the veto, making it law. The statute requires the state to meet carbon emissions targets over the next 30 years.

While Scott has agreed with the Legislature that it is important to address climate change, he contends the Global Warming Solutions Act could open up the state to frivolous lawsuits. The governor claims the statute is unconstitutional because it delegates the governor’s authority to a climate council.

The law requires the state to reduce greenhouse gas pollution to 26% below 2005 levels by 2025. Emissions would need to be 40% below 1990 levels by 2030 and 80% below by 2050. If the government failed to meet the goals, it could be sued for falling short.

While the law sets targets for reducing emissions, it does not spell out how the state will meet them. Instead, it forms a 23-member climate council — with the governor’s secretary of administration as the chair, and other members including state officials, representatives from manufacturing, citizen experts and others — that will draw up  a pollution reduction plan. 

It’s then up to the Agency of Natural Resources to adopt new rules to regulate greenhouse gas pollutants.

On Nov. 20, Susanne Young, Scott’s secretary of administration, who will chair the new climate council, said questions about the law’s constitutionality could lead to lawsuits and derail efforts to meet Vermont’s carbon emission goals.

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Young also said the administration could challenge the law if the Legislature does not clarify it in 2021.

On Nov. 25, the governor’s general counsel, Jaye Pershing Johnson, told Deputy Attorney General Josh Diamond the administration was interested in discussing legal challenges to the climate council’s authority.

In response to Johnson, the attorney general’s office sent a letter Wednesday to the Scott administration, outlining its legal opinion that the Global Warming Solutions Act is constitutional and does not circumvent the governor’s authority. 

The next day, the Attorney General’s Office sent out the press release.

“I made the call to the Attorney General’s Office as a lawyer to the state’s lawyer, and the next thing I knew the letter was circulating in the press,” Johnson said Thursday.

Johnson said she and the administration had wanted to work with the Attorney General’s Office to understand potential legal risks and what changes the Legislature could make. And, while the attorney general is unequivocal in backing the new law, the Scott administration is still not convinced.

In the letter to Johnson, Diamond argues the law does not remove power from the executive branch because it requires the Agency of Natural Resources, which is under the governor’s control, to implement the rules to curb emissions.

Johnson said the administration disagrees with the position that executive power has not been taken away from the governor and given to the climate council. The concern is that the council could take action without input from the administration and craft a plan that the Agency of Natural Resources is forced to adopt because the law strips away some of its discretion.

“Essentially, they’ve taken the executive branch’s rulemaking process and made it look a whole lot more like a legislative process,” Johnson said. “They’ve stripped out any discretion of the executive branch and made it merely administerial.”

Despite the differences, the Scott administration hopes it can work with the Legislature to address the concerns.

“We think the AG’s office may have constrained those opportunities by overreacting to what he perceived to be, as he said, ‘the threat of litigation that was reported in the media,’” Johnson said, referring to a VTDigger story about Young’s comments in late November.

“We are looking to avoid litigation to the extent possible and we’re hoping that others see that the work of the council is important enough to understand that this is a risk they also share,” she said.

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Kit Norton

About Kit

Kit Norton is the general assignment reporter at VTDigger. He is originally from eastern Vermont and graduated from Emerson College in 2017 with a degree in journalism. In 2016, he was a recipient of The Society of Environmental Journalists' Emerging Environmental Journalist award. Kit has worked at PRI's weekly radio environmental program, Living on Earth, and has written for the online news site Truthout.

Email: [email protected]

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