By Keith Whitcomb Jr.
Staff Writer
MONTPELIER, Vt. — The Vermont attorney general says he’ll defend the Global Warming Solutions Act against lawsuits claiming it’s unconstitutional, even if those lawsuits come from the governor.
Attorney General T.J. Donovan said Thursday that his office has sent a letter to Gov. Phil Scott stating his position on the law. The letter was sent after Scott’s legal counsel requested a meeting with the Office of the Attorney General to talk about the Global Warming Solutions Act’s constitutionality. Donovan’s letter also made reference to statements attributed by the media to Secretary of Administration Susanne Young indicating the administration might pursue legal action over the law.
The GWSA sets goals for reducing Vermont’s greenhouse gas emissions. It was vetoed this session by Scott after the Legislature sent it to his desk, but lawmakers then overrode the veto. The law creates the Vermont Climate Council, which can set rules and deadlines to be implemented by the Agency of Natural Resources.
The disagreement appears to be whether the law takes authority from the executive branch and gives it to the Vermont Climate Council. The law’s defenders say that it doesn’t, that the ANR’s role in implementing what comes out of the council keeps authority within the executive branch, while its detractors say the ANR is more limited than that, and the whole setup leaves the council’s actions open to legal challenges from elsewhere.
“I can’t speculate what the intentions are, but for me the bottom line is that it’s the law,” said Donovan. “The Legislature passed a bill, the governor, as is his right, vetoed it, and the Legislature overrode his veto, that’s how the system works. It’s the law of the state of Vermont and I’m going to defend it.”
Donovan said the power to implement rules recommended by the council rests with the ANR, which is an executive branch entity.
He said he’s never heard of a governor suing their own state and wasn’t sure how that would work beyond said governor needing their own legal counsel.
“The ball is in the governor’s court,” he said. “We just wanted to be really clear, we’re not going to sue the state of Vermont, I’m going to defend the state of Vermont.”
The letter sent to Scott’s office was signed by Deputy Attorney General Joshua R. Diamond. In it, Diamond writes that he won’t meet with the governor’s counsel given the threat of litigation.
Jaye Pershing Johnson, the governor’s counsel, said Thursday that the Legislature does have the power to create rule-making bodies and delegate its own authority to them, but the way the GWSA is structured doesn’t do this correctly, nor does it leave ANR with as much control as what’s been argued by the attorney general. “If they had delegated this authority to the Agency of Natural Resources there would not be an issue right now, we would not disagree with the attorney general’s office, we would not be talking about this,” she said. “But what they can’t do is use those two powers in such a way to deprive the governor of his constitutional duty to faithfully execute the law.” She said the Council’s structure makes it primarily made up of Legislative agents and awards it powers of the executive branch. She said the ANR has no power or discretion to modify the rules it’s given to enforce. Furthermore, should the ANR choose not to enforce the rules in some way, it would be open to lawsuits.
Pershing Johnson said she had hoped to work with Donovan’s office to address these issues and protect the work done by the Council, but his letter makes it appear as if that won’t happen, at least not with Donovan. Rebecca Kelley, representative for Scott, said the governor agrees with the work the council intends to do, but believes it will be open to legal challenge down the road if these issues aren’t solved upfront.
“The governor has said publicly that we are still considering our options, but I would reiterate that our goal right now is figuring out a solution to protect the work,” said Kelley. “If the Governor were to pursue anything that would also be the goal, because if we get two years down the road and we haven’t resolved the clear constitutional issues then the work is at risk.”
Pershing Johnson said the governor’s office is looking to ultimately avoid litigation by having these conversations.
“The fixes could be relatively simple, but we’re not looking to undermine the goal of the law as passed,” she said.
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