Conservation Law Foundation says Vermont failed to use correct emissions modeling, asks court to order ANR to adopt rules under GWSA

BURLINGTON, Vt. — The Conservation Law Foundation told the House Energy and Digital Infrastructure Committee on Thursday, Feb. 27, that it has sued the Vermont Agency of Natural Resources (ANR), alleging ANR used flawed greenhouse-gas modeling and therefore failed to adopt or update rules required by the Global Warming Solutions Act.

CLF senior attorney Jenny Rushlow said the suit focuses on section 5 94 of the GWSA, the statute's citizen-suit provision, and on ANR's statutory duty under section 5 93 to review emissions progress and adopt rules where required. “The citizen suit provision in the GWSA is very limited,” Rushlow said during testimony. “What it does is two things. It allows any Vermonter to sue the Agency of Natural Resources ... if they fail to adopt rules by the required deadlines, and if the rules they adopted don't result in the necessary level of reductions.”

Why it matters: The GWSA sets statewide emissions-reduction targets with statutory review points, including 2025. CLF argues ANR's modeling shows Vermont is not on track to meet the 2025 deadline and that, because ANR relied on a different modeling methodology than the state's historical inventory, its conclusion that no new rules were needed was unreliable. CLF says its expert found Vermont would achieve roughly 80% of the reductions required by 2025 under the agency's approach.

Rushlow, who described prior experience leading litigation in Massachusetts over that state's Global Warming Solutions Act, told the committee the statutory citizen-suit provision narrows possible litigation paths compared with broader mandamus actions under Vermont Rule 75. She also emphasized limits on remedies: a court can compel an agency to act but “has no power to specify what the action must be,” a point she said the Vermont Attorney General has cited in briefs.

Details from testimony: - Scope of the claim: CLF alleges ANR performed insufficient technical modeling and therefore erred in concluding Vermont was on track to meet the 2025 target; CLF seeks a judicial finding that ANR did not conduct the required review and an order requiring ANR to adopt or update rules consistent with the Climate Action Plan. - Legal limits: Rushlow said the citizen-suit provision allows courts to order ANR to adopt rules where needed but cannot direct the agency to adopt specific substantive rules (for example, a particular clean-heat standard). The provision also does not permit monetary damages; attorney's fees are discretionary with the court. - Precedent: Rushlow cited litigation in Massachusetts in which courts compelled state regulators to adopt required rules under that state's statute, and she said citizen enforcement has precedent in Vermont as well. - Procedural status: CLF's complaint is pending in Vermont Superior Court; ANR has filed a motion to dismiss and briefing on that motion has been completed. If the motion is denied, the case would proceed to the merits; if the motion is granted, CLF would likely appeal.

Committee members asked technical and procedural questions, including whether plaintiffs or the court could impose specific rule content (Rushlow said they could not), whether damages could be sought (she said no), and whether litigation would be costly for the state (Rushlow said the Vermont Attorney General routinely represents state agencies and that these suits are legal, not fact‑intensive, disputes). She also explained statutory criteria for rule selection under the GWSA, including emissions reductions, technological feasibility and cost‑effectiveness, and noted that “most cost‑effective” is a relative statutory standard.

Rushlow noted that the first statutory deadline for required rule review is 2025, meaning a court reviewing the claim will examine whether ANR's review and any consequent rulemaking meet the statute's nondiscretionary requirements. She declined to detail technical modeling differences at length because the litigation is pending, but told the committee CLF's expert concluded Vermont was about 20% short of the required reductions for 2025 under proper modeling.

The committee did not vote on any legislation during the hearing. Rushlow offered to provide written testimony to the committee for the public record.

The lawsuit, its motion to dismiss and any future rulings will determine whether the court requires ANR to undertake new rulemaking to meet the GWSA's statutory milestones.