SmartTranscript of Senate Natural Resources and Energy 04-30-2025-9:00 AM

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[Chair Anne Watson]: April thirtieth, and this is sending natural resources and energy. And we've had a little bit of some changes to the agenda this morning. We're gonna roll on [Michael O'Grady]: with it. And so thank you to our ledge council for the last minute switch to be here. Appreciate it. [Chair Anne Watson]: And we have an amendment that Senator Beck is bringing or is planning [Michael O'Grady]: to bring as I understand it, [Chair Anne Watson]: to the budget, but it pertains to some in our jurisdictions. So, hopefully, he'll be joining us later. But since we have you now, [Michael O'Grady]: if you would walk us through this movement. Good. Legislative council. I sent you the excerpt so that you should have it just posted on your website, but it is also in the senate calendar for today. This is it's kind of it looks like a long amendment, but it does three things. The first two instances of amendment repealed the p and d standard. The third instance of amendment repeals the global warming solution that cause of action. And then the rest of the amendment repeals Vermont's authority to use the California Clean Air Act labor for vehicle emissions and repeals the clean advanced clean cars to an advanced clean trucks rule. So I'll go over that more slowly, but it's three, different repeals. So the first instance of amendment repeals chapter ninety four, ten o thirty. That is the statutory tax of the clean pay standard. So it reveals the whole thing. The second instance of amendment repeals the other reference to the clean heat standard in statute, which is the the tax share the tax data sharing provision. So currently under thirty two b s a thirty one zero two e twenty three, there is a provision that says that the tax the commissioner tax may share the fuel tax data with the PUC and the Department of Public Service so that they can audit fuel dealer registry. So this would repeal that section as well. The third instance of amendment repeals ten ESA five ninety four, which is the cause of action provision in the Global Mortgage Solutions Act. This is also known as the citizen supervision. Repealing this would not affect the ongoing litigation. It would be proactive. And then so starting with the fourth instance of amendment, there's language added to ten BSA five sixty seven. It's adding so currently, the secretary and here, this is a and r. The secretary, in conjunction with the Department of Motor Vehicles, may provide rules for the control of emissions for motor vehicles. However, the secretary shall not adopt the California rules for new word for new motor vehicles authorized in the Clean Air Act forty two USC seventy five zero seven. This language is that added again. It was a fifth instance of amendment because there's another statute that gives the sanitary of natural resources, additional, authority to establish emission control requirements viable as in their their government necessary to prevent and control air pollution. And so, again, they add the language of the secretary shown not about the California rules. Finally, this language is added in the sixth instance of amendment as well because under the global warming solution pack, there's some additional language. So section five ninety two for the Vermont Climate Action Plan, the secretary shall proceed in adopting and implementing rules to to achieve the request gas emission reduction requirements. However, in neither instance shall the secretary adopt California rules for new boarding vehicles authorized in the Clean Air Act. And then finally and so I'll just say, so there's existing the the secretary of natural resources has multiple existing sources of authority to adopt air pollution control rules. And so she has them under the motor vehicle standard. She has authority to adopt motor vehicle rules, and she also has authority to adopt air pollution rules. And then they also she also has the authority to adopt climate rules under the climate action plan, which are the emission reduction rules. And so cited in all three places because, the agency has cited that those all three of their authority to adopt these rules. And then finally, there is the in the seventh instance of November, there's a rule repealed. So the Vermont low emission vehicle and zero emission vehicle rules, Department of Environmental Conservation chapter forty, low Vermont, low emission vehicle, and zero emission vehicle rules are repealed. And so that is the rule that DEC has adopted for these California programs. Yes. Go ahead. On the rules, would this be all the mess that secretaries can adopt related to air quality and air and emissions? Or No. Okay. It's just chapter forty, which is the, advanced based cars two and advanced clean trucks. Okay. And those are part of the California rules. We've been adopting California clean air rules for decades. Right? Yep. [Chair Anne Watson]: Okay. And [Michael O'Grady]: if we don't have their rules, what is the fallback? What do we have? The federal standard. [Chair Anne Watson]: And I'm sure that's gonna be good. Right? And then we know who controls that. [Michael O'Grady]: Yeah. So there's two existing emission controls for vehicles. There's two existing standards. There's a federal standard and a California standard. And so only seventeen or so states have used California. Well, the rest of the country uses the federal standard. And it could be if we don't adopt the California if [Chair Anne Watson]: we're not allowed to adopt it, if this passes and we're not allowed to adopt California rules, could we adopt our own rules [Michael O'Grady]: that are more stringent than [Chair Anne Watson]: the federal rules or no? Yeah. The options are either the federal rules for the California rules. Correct. So there's no space for modifying the the clean the the California Virgin. Like, it's either as I'm just repeating what Senator already said, but it's either California's rule or it's a federal rule. No. We we're not really allowed creativity Correct. In that space. Okay. Yeah. [Michael O'Grady]: And I can just say a little bit more about how that works. So so the Clean Air Act, when it was adopted, set the emission regulations for the country, and it did preempt the cultural field. So all the states had to to follow it, but it does have section one hundred and seventy seven of the Clean Air Act says, if there was a state as of the time of the adoption that had more strict air pollution controls than the rest of the states, that state was allowed to continue to adopt their own stricter standards. The one state that met that was California. Another provision was added to the clean air that said any other state may then adopt California's version identically. So you can either opt into the identical version of California or use the federal. And so in neither case can any state make any changes or have any creativity on that space. It's either California at all, California or all of the theft. [Chair Anne Watson]: Question. You said they may know who controls that? You assume [Michael O'Grady]: I don't I don't know. [Chair Anne Watson]: Oh, no. No. No. Mhmm. [Michael O'Grady]: Mhmm. Mhmm. [Chair Anne Watson]: Okay. Other questions just to do some level setting here. In because we haven't really got over the Global Warming Solutions Act in great depth here. So this provision to, repeal the cause of action, I understand that it is a citizen suit provision and not technically a private right of action. Is that or maybe there's a, like, umbrella, maybe that's an umbrella term. Can you help us understand what the citizen supervision is or what it does? Sure. [Michael O'Grady]: I don't think there's a distinction. I think that's [Chair Anne Watson]: Oh, it's it? Okay. I have heard that there was a difference. I'm happy to be educated. [Michael O'Grady]: I don't think there is. And regardless, in the statute, it's just called cause of action. Mhmm. And so, it does say that any person can, bring a lawsuit under the terms of five ninety four against the secretary of ANR. And there are two forms of lawsuits that can take. The first is, someone could bring a lawsuit alleging that the secretary failed to adopt or, update rules that would help the state achieve the requirements under the Global Learning Solutions Act. The other venue the other option is someone could bring a lawsuit saying that the state did fail to meet the requirements of the Global Learning Solutions Act, again, for that with the secretary. There are specific timelines in this. It does give a timeline that first requires someone seeking to bring this lawsuit to first do a sixty day notice to the secretary about what they're going to be alleging. This gives the secretary a chance to respond or potentially make changes. Then they have to file the suit with the civil division of the Washington Superior Court if if they seek to go forward. And so I will say there was one after the very first deadline of the global warming solution tech where someone did bring forward a notice of violation to the secretary, but then chose not to file suit. Then at the next deadline, some of the different cases of violation and has important a lawsuit. So there is an ongoing lawsuit currently with the secretary of natural resources under this provision. Additionally, it spells out what the potential remedies are if the court finds for the person bringing the lawsuit. So if they find that the secretary failed to do either of those things, the remedy is that the court shall direct shall issue an order directing the secretary to adopt or update the rules. But if this the other the other way is if the court were to find that the secretary is is taking prompt and effective action to adopt rules, the court will just grant them reasonable time to continue to do that. And then same for if they fail to do fail to reach the Global Wage and Exchange Act requirements, the court can either find that the secretary is taking prompt and effective action to comply or that the the secretary shall adopt or update rules in order to achieve the requirements. So in either case, the only directive from the court would be directing the secretary of ANR to adopt rules. It does, however, have a, provision that says if the prevailing part if the plaintiff prevails substantially in its lawsuit, that the plaintiff shall be awarded reasonable costs and attorney's fees unless doing so would not serve the interest of justice, or the defendant, so the secretary, may be awarded reasonable costs and attorney's fee if the action was frivolous or lacked a reasonable basis in law or fact. So this is language. This language for this this provision is based on rule seventy five of the Vermont rules of civil procedure, which is why I brought this with me. And so it's been a while since we've talked about this. Our Global Warming Solutions Act is based on what other states like Massachusetts have done. And when Massachusetts after they adopted their Global Warming Solutions Act, someone did bring a lawsuit under their version of rule seventy five. And rule seventy five is anyone is allowed to bring a suit for failure of a government agency to act. I'm not super familiar with some of the components of this legislation, but the rule itself is actually pretty short and a little bit vague. And so, I may need to do a little bit of research, but it's vague about what the the remedies actually are if someone were to win that lawsuit. So I believe some of the intent of the legislature was this permission in five ninety four does put some very specific parameters about when the lawsuit can be filed and what the outcomes of it could be. I will also add that rule fifty four of the Vermont Rules of Civil Procedure. The Vermont Rules of Civil Procedure are the general court rules that anyone bringing a civil lawsuit are required to follow. So rule fifty four also says that a substantially prevailing party can ask the court to award attorney's fees and costs at the end of the case. And so that already exists in the rules currently. And so, and so I have been asked in other committees, if you repeal the cause of action that's in statute, what could happen? So repealing this cause of action would not affect any ongoing litigation. It would just prevent future litigation. But under the terms of that statute, potentially, someone could bring lawsuit under rule seventy five, and they could also use rule fifty four to then ask for attorney's fees if they were to win. [Chair Anne Watson]: Okay. Any other questions? I feel pretty clear about the first instance. Just feel like we've talked a fair bit about this. I don't have any questions about the ninety part, but if others do, it's fair. Okay. Any other questions about this? Thanks. Thank you. And we are scheduled for a break at nine thirty. If senator Beck were back, we should have him give a quick rundown of his thinking about this amendment, but he is not here. So, we are gonna take a break right now. And if he's back well, I I actually feel like it may not be enough time to do him justice. And as I understand, I don't think this is gonna be up for discussion today as I understand it. So we have a little bit more time. So we are going to we'll let's assume that we'll hear from senator Beck tomorrow, and, we'll we'll take a break, from now, and we'll be back on at ten. At ten? At ten.
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