Commentary: The Check Back for Legislative Accountability

The climate lobby is racing to push through the Clean Heat Standard heating fuel tax bill – without any legislator voting on the record to launch this costly program. For climateers, defeating the Menace of Climate Change trumps Vermont’s constitutional requirement of legislative accountability. The Check Back Amendment would require a vote of the legislature after March 2023, when all the details are known.

Fifty two years ago the Vermont General Assembly was faced with an important issue. The Gibb Commission had reported to Gov. Deane Davis that Vermont was in danger of being overrun by unrestrained development, bringing a long list of challenging impacts.

The Municipal Planning and Zoning Act of 1968 had provided towns with numerous tools to use to prevent undesirable development impact. But probably two hundred or more of Vermont’s 246 towns and cities lacked any experience with those tools, and many were being overtaken by events.

Gov. Davis and his Administration Secretary Richard Mallary, a former Speaker of the House, charged House Assistant Clerk Bruce Graham, attorney general James Jeffords, and Vermont Natural Resources Council attorney Jonathan Brownell with drafting legislation to deal with this problem – quickly.

The only available model was Oregon’s land use plan. Its legislature had voted the guiding principles, but directed its appointed Land Conservation and Development Commission to develop and put the actual plan into effect without a further vote of the legislature. The resulting plan, affecting lots of property rights, proved very controversial.

In Vermont in 1970, the draftsmen declared guiding principles, added definitions and ten somewhat imprecise permit criteria, created an Environmental  Board, and charged it with producing a State Land Use Plan.

Gov. Davis and Secretary Mallary, recognizing the unprecedented breadth of the step they were asking the legislature to approve, and mindful that the Constitution required that legislators be accountable to the people, insisted that any proposed State Land Use Plan be approved by the General Assembly before taking effect. The Environmental Board’s Plan appeared in 1973, and after three years of bitter controversy, the Senate shelved what was left of it.

In 1984 Act 250 was amended to repeal the requirement that there even be a State Land Use Plan. Accountability of lawmakers to the people had triumphed over severe land use regulation decreed by an unelected and unaccountable government board.

That same battle is now joined again. The issue is the Vermont Climate Council’s “Clean Heat Standard” (H.715). As passed by the House, the unelected Public Utility Commission would have unlimited power to force heating oil, natural gas and propane consumers to pay unlimited amounts of higher fuel prices to get rid of fossil fuels for heating. From the advocates’ point of view, the bill has the great advantage that no legislator will ever vote on it, and risk facing the wrath of the voters.

Gov. Scott has long opposed  any regressive carbon tax - for that is what the Clean Heat Standard amounts to – as an unaffordable and unacceptable burden on the poor, working people, retirees, town and city governments, hospitals, schools, churches, and businesses large and small. In a regrettable but realistic concession to the large Democratic majorities in House and Senate, Scott seems willing to let H.715 become law – IF before taking effect the final scheme is approved by a majority of legislators in the House and Senate.

Scott’s view is contained in the “Check Back” Amendment to be offered in the Senate. It states “The Clean Heat Standard shall not take effect until an Act accepting the March 15, 2023, report on projected costs and benefits of the Clean Heat Standard…, . is passed by the General Assembly and becomes law …”.

That view is opposed – some would say fanatically - by Democratic Senators who are lusting to drive out fossil fuels to defeat the Menace of Climate Change, but who want nothing to do with accountability to the people. They have concocted a “Fake Check” amendment which would allow the PUC to implement a sweeping and costly Clean Heat Standard without a roll call vote of the legislators. They think they can kill the accountable Check Back legislative vote and rally all Democrats to overturn a Scott veto.

This has been called the “Now or Never” strategy:  Kill the Check Back requirement Now and ram this sweeping stealth tax bill into law now by overriding a Scott veto; or accept the Check Back requirement now, and put off the Clean Heat Standard vote until 2023. That risks Never getting the bill passed, because the next legislature may be much more favorable to the governor’s point of view, and Democrats may face an electorate less inclined to reelect those who voted to create the Clean Heat Standard.

Republicans, whose 1970 governor and legislature gave Vermont Act 250, unanimously support the Check Back requirement.

This is about much more than saddling Vermonters with ever-higher heating fuel prices, burdensome as that will be. This is about whether three unelected officials should be empowered to decree enormous and costly changes to the lives and fortunes of hundreds of thousands of Vermonters, while the elected representatives of the people avoid any accountability.

Update: on April 28 the Senate voted 23-7 to add  the Check Back requirement to H.715, and on the following day passed the bill.  It will now go back to the House for further action.  “This bill will make buying fossil fuels more expensive, it is a carbon tax,”  announced Senator Mark MacDonald (D-Orange) before voting for the legislation.


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