Skip to main content

Attorney General Vows to Defend any Lawsuit Brought by Governor Alleging Global Warming Solutions Act is Unconstitutional

December 3, 2020

CONTACT:    Charity R. Clark, Chief of Staff, 802-828-3171

Attorney General T.J. Donovan informed the Governor’s Office that he would defend any constitutional challenges to the Global Warming Solutions Act (GWSA), including any brought by the Governor or his administration. In a letter by Deputy Attorney General Joshua Diamond, the reasons for the constitutionality of the GWSA were also described in detail. The letter was prompted in part by comments attributed to Secretary of Administration Susanne Young at the first meeting of the Climate Council that indicated the Administration may seek judicial action on the GWSA.

“The Global Warming Solutions Act is constitutional and good policy,” said Attorney General Donovan. “Vermont should be a leader in addressing global warming and should do what we can to meet our climate goals. There is nothing wrong with holding government accountable to the will of its people.”

The GWSA provides structure and guidance to achieve meaningful reductions in greenhouse gas emissions. This is accomplished, in part, by establishing a Climate Council to develop a Climate Action Plan. The Climate Action Plan will provide a framework for the Agency of Natural Resources to promulgate rules to achieve mandated reductions in greenhouse gas emissions. The Vermont legislature overwhelmingly voted in favor of the GWSA, reflecting broad public support for this important law.

In its letter, the Attorney General’s Office (AGO) responded to two theories that have been raised about the GWSA’s constitutionality. The first theory relates to the “nondelegation doctrine,” which says that the legislature cannot delegate its legislative authority to the executive branch. Using case law, the AGO’s letter explains that the GWSA does not run afoul of this doctrine because it provides sufficient policy guidance and standards. The letter then lists several specific examples of the GWSA’s policy guidance and standards.

With respect to the second theory, the AGO also refuted the notion that the GWSA is unconstitutional because it usurps the executive branch’s authority. Because the GWSA requires that the Agency of Natural Resources – a part of the executive branch – implements the GWSA, not the Climate Council, there can be no usurpation of the executive branch’s authority. The letter further points out that the Climate Council is not controlled by the legislature and is in fact chaired by the Secretary of Administration.

A copy of the AGO’s letter can be found here.