Conservation Law Foundation proceeds with lawsuit against state for alleged violations of climate law

The Conservation Law Foundation filed a lawsuit against Vermont Natural Resources Secretary Julie Moore on Tuesday for allegedly violating the state’s 2020 Global Warming Solutions Act.

In July, the organization gave the state notice that it intended to file the lawsuit, and requested state officials work with them to settle the matter. The state has not engaged in those discussions with the organization, Conservation Law Foundation said in a press release about the lawsuit on Tuesday.

Vermont’s Global Warming Solutions Act put in place legally-binding deadlines for reducing pollution that causes climate change. The law aligns with the international Paris Agreement, which aims to keep global temperatures from increasing by more than 1.5 degrees Celsius. The state must reduce emissions 26% below 2005 levels by 2025, 40% below 1990 levels by 2030 and 80% below 1990 levels by 2050, or face potential lawsuits.

In its 53-page complaint, the Conservation Law Foundation claimed Moore used an inaccurate model to estimate Vermont’s progress in reducing greenhouse gas emissions when she told legislators the state is on track to meet the 2025 deadline, and doesn’t need to take additional action .

In an interview with VTDigger on Tuesday, Moore said agency staff “feel comfortable” that their approach to measuring the state’s emission reductions “is reasonable.” She confirmed that the state declined the Conservation Law Foundation’s request to settle the matter before the organization filed suit.

“Different models produce different results, and it’s based on a set of assumptions and parameters that are used to populate the model,” she said.

But the model “is not calibrated based on historic emissions data that the state has, nor the methodology that the state uses to do its own emissions accounting,” said Elena Mihaly, vice president of the Conservation Law Foundation Vermont. As a result, the model “overestimates how much emission reductions are actually being achieved,” painting a rosier picture of emissions reductions than what’s actually taking place, she said.

The law required Moore to decide by July 1, 2024 whether the state would need to adopt any new rules or regulations to ensure the state met its 2025 deadline.

In her letter to statehouse leaders, dated Dec. 18, 2023 and included in the organization’s complaint, Moore wrote that the Agency of Natural Resources’ Climate Action Office “estimates that Vermont is on track to meet the 2025 climate pollution reduction requirement” mandated by the law, and therefore, the agency “does not need to promulgate any additional rules before the July 1, 2024 deadline.”

The Conservation Law Foundation wrote in its complaint that, by using faulty modeling, Moore “failed to comply” with the law because she knew or should have known the model was “technically and mathematically insufficient to reliably predict achievement of the 2025 Reduction Requirement and was not intended for that use.”

It’s not the first time the argument has been raised: In January 2024, Jared Duval, Climate Council member and executive director of the Energy Action Network, which analyzes the state’s emissions data, pointed to what he described as flaws in the state’s model.

Moore said the state made changes based on Duval’s comments, and now believes the model is sufficient.

“After Jared raised concerns about the analysis, we did review model assumptions with the contractors who had carried out the work,” she said. “We made one further adjustment based on that conversation, and feel pretty comfortable that the baseline scenario now fully considers the available data, and relates on a set of model inputs that’s consistent with the approach we’ve used throughout the climate planning process.”

But in its lawsuit, the Conservation Law Foundation instead pointed to a different, state-commissioned model by the Energy Futures Group that predicted Vermont would not meet the 2025 deadline, and concluded in its complaint that the state should have taken actions to reduce emissions.

Moore said she was “not in a position” to comment on the discrepancy between the Energy Futures Group model and the one the state is using, “not having personally reviewed” the former.

Finally, the organization alleged the state did not hold required public hearings related to the findings Moore detailed in her December 2023 letter, and therefore failed to comply with the procedural elements of the law.

Moore said submitting the letter “was a very public-facing process involving a number of the subcommittees of the Climate Council, and felt that those opportunities had been offered very broadly as part of the Climate Council’s work.”

Mihaly told VTDigger she hopes an opportunity for settlement “is still on the table.”

“We continue to remain open and think that that is a better pathway, to talk things through with the state, than having to go through formal costly litigation, but we feel we don’t have a choice at this point,” she said.

But Moore said she is “ready to defend what I see as very good work being conducted by ANR staff, and would obviously prefer not to need to engage in litigation, but (I) feel strongly that our approach is reasonable and defensible.”