The ZEV Rebellion

A December shootout before the Legislative Committee on Administrative Rules bodes well for accountability in state government.

Here's a bit of background: starting in 1976 state agencies wishing to promulgate rules binding on citizens have had to submit the proposed rules to an eight-member legislative committee (LCAR). The committee examines whether the proposed rule is within the scope of a statute, conforms to "legislative intent", and is not arbitrary. The committee does not have veto power over proposed rules, but an adverse vote in LCAR can be used as plaintiff's evidence in a subsequent court case challenging the rules. On at least 16 occasions since 1976 LCAR has given a thumbs down on proposed rules, only to have the rule-making agency go ahead anyway.

The December shootout came over proposed Agency of Natural Resources rules to further implement "California standards" for auto emissions in Vermont. These stringent standards require auto manufacturers to sell a specified number of "zero-emission" (electric powered) cars in Vermont starting in the 2004 model year.

But auto companies don't sell cars to consumers. They sell them to independent, franchised auto dealers. And since practically nobody wants to buy an overpriced, underpowered battery powered car, Vermont auto dealers are up in arms over the proposed rule. They face the calamity of manufacturers delivering a dozen ZEVs to their lot that that the dealers have to pay for, but no one will buy.

In early November ANR decided that the new California ZEV rules were unrealistic. The agency decided to stretch out the Vermont deadline to 2007, and give ZEV credit for alternative hybrid gas-electric vehicles not now included. This idea is incorporated in the similar rules proposed in Massachusetts and New York, the only other states to adopt the California standards. But Gov. Howard Dean, out of state on a trip, got wind of the proposal. He instructed the agency to go back to the tougher California standards and throw out the alternative vehicle options.

On December 12 LCAR, on a 5-3 vote, objected to the Dean-amended ANR rules as contrary to legislative intent. A week later the agency tried again. Again LCAR turned thumbs down, this time by a 5-2 margin. The Governor now as to decide whether to direct ANR to go ahead, notwithstanding LCAR's objections.

Those who have complained about excessive rule-making over the years hailed the LCAR votes as the "shot heard 'round the state" - a wake up call to legislators to start taking control of agency rule making. The most appropriate means of doing that is the regulatory accountability act. As proposed over the past 12 years, it would allow 30 House member sof six Senators to force an up or down vote on the acceptability of agency rules, whether in force or proposed. If both houses voted down the rule, the resolution would go to the Governor for his signature or veto.

The rule in question might still end up being approved, but everybody would know exactly which elected officials were responsible for it. Legislators could not slough off responsibility to "those out of control bureaucrats". Their vote would be on record for all to see. This fact, along with agency opposition, is probably why regulatory accountability proposals haven't gotten very far in past years.

LCAR's ZEV rebellion may herald a new day. Thanks to this issue, the 2002 legislature is likely to consider a regulatory accountability statute. With respect to the ZEV rules, the legislature ought to promptly pass a joint resolution removing Vermont from compliance with the car emission rules written for smoggy Los Angeles, and instead requiring the state to meet the less stringent federal "Tier 2" standards. When the resolution arrives on Governor Dean's desk, he can decide how best to strike a balance between the national image he wants to have as a "green" politician, and the interests of the legislature and the people of Vermont who will have to pay the bills for this costly and unpopular exercise.

Meanwhile, a high powered group headed by Amory Lovins of the Rocky Mountain Institute has a futuristic fuel-cell "Hypercar" well along on the drawing boards. The hydrogen-fueled all-wheel-drive 5-passenger vehicle will get 99 miles per gallon equivalent. It will have a range of 330 miles and accelerate to 60 mph in 8.3 seconds. Competitive free enterprise, not heavy handed government regulation, will put ZEVs on the road by offering consumers what they want, not what government regulators insist they must have.

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December 2001