Vermont Senate Passes Right to Sue if the State Fails to Meet Climate Targets


Vermont State House
State House in Montpelier—Vermont’s capital city. By Justin.A.Wilcox – Own work, CC BY-SA 4.0, Link

Guest essay by Eric Worrall

The sad spectacle of greens losing climate lawsuit after lawsuit has prompted Vermont’s legislators to create a special law to allow activists to sue the Vermont government.

Vermont Senate approves Global Warming Solutions Act

By Xander Landen
 | 24 reader footnotes

The Vermont Senate approved legislation Thursday that would legally mandate the state meet carbon emission reductions targets in the coming years, and allow individuals to sue the government if it doesn’t. 

The bill, H.688, known as the Global Warming Solutions Act, has been a priority this session of the Democratically-controlled Legislature.

The measure, which was approved in a vote of 22-6, would require 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. 

Emissions have increased in recent years, with the most recent data from 2015 showing emissions 16% higher than 1990 levels. 

Proponents of the bill say that giving Vermonters a way to hold the state accountable for reducing emissions is essential to make sure the government actually meets its targets. 

“It’s about time we give citizens a tool, and it’s about time that we set up an actual process, to not just hope that we will get somewhere, but to, in fact, look at how could we possibly redesign our economy in a way that has us not importing fossil fuels,” Sen. Chris Pearson, D/P-Chittenden, the co-chair of the Legislature’s climate caucus, said on the virtual Senate floor. 

Read more: https://vtdigger.org/2020/06/25/vermont-senate-approves-global-warming-solutions-act/

The section which describes the right to sue;

§ 594. CAUSE OF ACTION

(a) Any person may commence an action based upon the failure of the Secretary of Natural Resources to adopt or update rules pursuant to the deadlines in section 593 of this chapter.

(1) The action shall be brought pursuant to Rule 75 of the Vermont Rules of Civil Procedure in the Civil Division of the Superior Court of Washington County.

(2) The complaint shall be filed within one year after expiration of the time in which the Secretary of Natural Resources was required to adopt or update rules pursuant to section 593 of this chapter. However, a person shall not commence an action under this subsection until at least 60 days after providing notice of the alleged violation to the Secretary.

(3) If the court finds that the Secretary has failed to adopt or update rules pursuant to the deadlines in section 593 of this chapter, the court shall enter an order directing the Secretary to adopt or update rules. If the court finds that the Secretary is taking prompt and effective action to adopt or update rules, the court may grant the Secretary a reasonable period of time to do so.

(b) Any person may commence an action alleging that rules adopted by the Secretary pursuant to section 593 of this chapter have failed to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title.

(1) The action shall be brought in the Civil Division of the Superior Court of Washington County.

(2) The complaint shall be filed within one year after the Vermont Greenhouse Gas Emission Inventory and Forecast published pursuant to section 582 of this title indicates that the rules adopted by the Secretary have failed to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title. However, a person shall not commence an action under this subsection until at least 60 days after providing notice of the alleged violation to the Secretary.

(3) If the court finds that the rules adopted by the Secretary pursuant to section 593 of this chapter are a substantial cause of failure to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title, the court shall enter an order remanding the matter to the Secretary

BILL AS PASSED BY THE HOUSE H.688 2020 Page 37 of 39

to adopt or update rules that achieve the greenhouse gas emissions reductions requirements consistent with this chapter. If the court finds that the Secretary is taking prompt and effective action to comply, the court may grant the Secretary a reasonable period of time to do so.

(c) In an action brought pursuant to this section, a prevailing party or substantially prevailing party:

(1) that is a plaintiff shall be awarded reasonable costs and attorney’s fees unless doing so would not serve the interests of justice; or

(2) that is a defendant may be awarded reasonable costs if the action was frivolous or lacked a reasonable basis in law or fact.

(d) Nothing in this section shall be construed to limit the rights, procedures, and remedies available under any law, including the Vermont Administrative Procedure Act pursuant to 3 V.S.A. chapter 25.

Read more: https://legislature.vermont.gov/Documents/2020/Docs/BILLS/H-0688/H-0688%20As%20passed%20by%20the%20House%20Official.pdf

I’m not an expert in Vermont constitutional law, but if they wanted to surely a future senate and assembly could rescind this new law, before any claims could be brought before the courts?

It is not clear where Vermont plans to source the renewable energy they will need to achieve zero emissions. Vermont already has extensive hydroelectric power, so its likely most of the good hydro sites are already in use. Vermont is not exactly known for its sun drenched fields. I guess wind power may be an option – when the wind blows.

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