Attorney General Charity Clark ducks question about GWSA lawsuit.

When the Vermont legislature passed the Global Warming Solutions Act (GWSA) in 2020, lawmakers included a provision that allows anyone to sue the state (technically the Agency of Natural Resources) if we fail to meet the mandated greenhouse gas reduction targets in the law. Specifically, the law says,

 (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…. (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…. (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;…

What this does is grant “standing” to literally anyone who wants to sue without their first having to prove that they were harmed in some way by the law. And, while the (GWSA) opens the door to “any person,” the real threat of lawsuits come from organizations like the Conservation Law Foundation.

This issue came up in testimony regarding the Clean Heat Standard bill, S.5, amid concerns that lawmakers have heard from a number of witnesses that meeting the goals of the GWSA are logistically “impossible.” The labor force trained to do the necessary work – install heat pumps, upgrade electrical infrastructure, weatherize homes, etc. – is not nearly large enough to meet the demand of the law. According to analysis by the Energy Action Network, Vermont has less than 800 trained workers in these fields, and the GWSA mandates require over 6000 to be in place by 2025. Clearly, that is not happening.

So, when  Anthony Iarrapino, an attorney representing the Conservation Law Foundation testified in support of the Clean Heat Standard, a key component of the GWSA, Rep. Paul Clifford (R-Rutland) asked him point blank, “Say we couldn’t meet the Global Warming Solutions Act standards. What would the position be of the CLF?”

 “Well…,” replied Iarrapino after lamenting he hopes it doesn’t come to this, “it’s possible that even if you pass the Affordable Heat Act that you don’t take enough action in the other sectors that CLF would on behalf of its members invoke the Global Warming Solutions Act and act for action from the judicial process. We keep all options on the table…. The Global Warming Solutions Act is a powerful legal tool.”  A long, legalese way of saying, yes we’re going to sue you. A notion backed up by the fact that the CLF did, in fact, sue Massachusetts for not following through on its GWSA, and won.

Now, in Vermont the person who would be charged with defending the state and the taxpayers who support it is Attorney General Charity Clark.

It just so happened that AG Clark also testified on the same day as Iarrapino, and Rep. Brian Smith (R-Derby) asked her, “We have heard a lot of testimony that the lack of labor force means meeting the goals of the Global Warming Solutions Act is going to be ‘impossible’. Where does that leave us in regard to the lawsuit provision of the GWSA that says anybody can sue the state if we don’t meet these goals? The CLF has testified they are prepared to bring suit. Can you win that suit?”

Clark, who was effusive in her praise of the Global Warming Solutions Act, the Climate Action Plan, and voiced her support for the Clean Heat Standard, ducked Smith’s question.

Visibly squirming, Clark replied, “One thing I will say is the Global Warming Solutions Act is law…. We have a plan on how to move forward to meet the mandates of the law, and what we should be doing now is the best we can to put – I mean, I’m not telling you what to do; this is my take – putting in place the best policies and laws that we can meet the obligations of the Global Warming Solutions Act.”

Smith asked Clark again if she thought she could win a suit against the CLF, and again Clark refused to directly answer the question, or acknowledge the premise that meeting the goals of the GWSA, despite all the best efforts of the legislature and the Administration, is not possible.

The AG’s website defines the office’s role as, “legal counsel to all state agencies and to the Legislature” and to “Protect Vermont citizens.” It would seem contrary to these goals that the Attorney General would support a law that intentionally puts a state agency (The Agency of Natural Resources) at increased risk of legal jeopardy, and open up Vermont citizens to the liability of having to pay for the cost of that potential lawsuit.

Based on AG Clark’s statements, maybe the Representative’s question shouldn’t have been can you win the case, but rather do you intend to lose it on purpose?

• Rob Roper is a freelance writer with over twenty years experience in Vermont politics and policy.