Let’s Not Wait

“Do something!” the crowd chanted, drowning out Ohio’s governor at a vigil following a mass shooting on a busy street in Dayton. That shooting, in early August, claimed nine lives. It occurred less than 24 hours after 22 lives were taken in a mass shooting at a Wal-Mart in El Paso, Texas and less than a week after four were fatally shot at a food festival in Gilroy, California. At the end of August, another mass shooting, with a killer shooting randomly from his car, took seven lives in Odessa, Texas.

The calls to “do something” initially resonated in Washington. It appeared that the Senate would actually take up legislation expanding background checks and promoting “red flag” laws. Unfortunately, that resonance has dissipated. The issue quickly lost its salience in the nation’s capital.

Salience is defined as “the quality of being particularly noticeable, important, or prominent.” The urgency of addressing gun violence is most noticeable, important, and prominent soon after horrific events like those in Dayton, El Paso, Gilroy, and Odessa. Last year, gun violence was salient in Vermont after the mass shooting in Parkland, Florida and the near miss in Fair Haven, Vermont. The salience of those events helped pave the way for the legislature to pass, and the Governor to sign, laws making it harder for those who mean to hurt themselves or others to obtain firearms and reducing the lethality of firearms that may be misused. Act 97 allows law enforcement to show a judge that an individual presents an extreme risk of harm to himself, herself or others and obtain an Extreme Risk Protection Order, requiring the person to relinquish any dangerous weapons. Act 92 allows law enforcement to temporarily remove firearms from the scene of a domestic violence incident. And Act 94 expands the requirement for background checks to include private sales, places restrictions on the sale of firearms to those under age 21, limits the transfer and possession of high-capacity ammunition magazines, and bans the transfer and possession of bump-fire stocks.

The salience of an issue, though necessary, may not be sufficient impetus to enact laws to address gun violence. Last December, a young man committed suicide in Essex with a handgun that he had purchased four hours earlier. His parents made this incident salient, urging legislators to pass a law to establish waiting periods for firearm purchases. And the legislature did pass a bill that established a 24-hour waiting period for the purchase of handguns. But despite testimony and studies showing that such a waiting period would save lives, Governor Scott vetoed this bill.

I would prefer that legislative action on beneficial policy such as reasonable firearm regulation did not require salience: Vermont should not have to wait for the next salient event – a near miss or personal tragedy – to do something to reduce potential harm from firearms. And despite the progress that the State made last year, in light of the setback from the Governor’s veto this year, there is more to be done. Let’s not wait until the issue becomes salient again.

Let’s not wait until we have more firearm victims in domestic violence situations. Let’s find ways to make sure firearms are kept from domestic abusers or those threatening such abuse.

Let’s not wait until a child accesses an improperly-stored firearm and harms himself, herself or another person. Let’s strengthen our safe storage laws.

Let’s not wait for additional individuals to acquire firearms easily and quickly to cause harm to themselves or others. Let’s continue to push for a reasonable waiting period for the purchase of firearms. Let’s consider restrictions on the most lethal firearms.

Let’s not wait for federal action to address firearm violence. Let’s continue to act locally, knowing that we are participating in a regional solution, joined by other New England states implementing commonsense firearm restrictions.

In the next legislative session, I do not intend to wait. I will continue my efforts to “do something” to reduce the harm from firearms.

Restoring Lake Champlain

The deteriorating condition of Vermont’s waterways harms the State’s economy and way of life. Restoring them requires the State to raise sufficient funds and use them efficiently on appropriate cleanup projects and initiatives. In my June column, I explained that, after four years of consideration, the legislature agreed to a dedicated long-term funding source for water cleanup efforts. I now explain how the legislature has addressed implementing, administering, and funding clean water projects.
For years, Vermont has been confronting the growing threat to Lake Champlain from pollution, primarily too much phosphorous. This nutrient stimulates excessive growth of algae in the Lake, which poses a public health hazard and harms recreational uses, aesthetic enjoyment, and the Lake’s wildlife. Phosphorus comes from a variety of sources. It spills into the Lake from farm fields and barnyards, where it is a product of fertilizers such as manure. It also comes from eroding streambanks, stormwater runoff from developed areas including roads and parking lots, stormwater runoff from forested lands, and wastewater discharges.

In 2015, the legislature took a major step in addressing this ongoing problem when it passed Act 64, Vermont’s Clean Water Act. The law was intended to help the State meet its obligations under the federal Clean Water Act, particularly to satisfy restrictions known as a Total Maximum Daily Load (TMDL). The TMDL caps the amount of phosphorous allowed to enter twelve different segments of Lake Champlain.

To meet these caps, Act 64 modifies existing regulatory programs and creates new ones. These programs require entities to obtain permits from the Agency of Natural Resources (ANR) or the Agency of Agriculture, Food and Markets for a variety of activities that may discharge pollutants into the State’s waterways. To obtain a required permit, an entity may have to implement and maintain best management practices such as building a stormwater retention basin, which treats stormwater runoff by emulating the water-treatment provided by natural watersheds.

The legislature recognized that such practices required by regulatory programs would not reduce pollution sufficiently to meet the State’s water quality standards. Voluntary, or “non-regulatory,” projects were needed as well. Thus Act 64 amended the statutory cleanup requirements, requiring non-regulatory reduction strategies. These could include restoring wetlands, reforesting buffers along streams, reducing development in floodplains, and assisting with practical and cost-effective management practices for stormwater control from construction, redevelopment, or expansion of impervious surface that does not require a permit. To encourage nonprofit organizations, landowners, municipalities, and other entities to undertake such projects, the Act established a Vermont Clean Water Fund to provide resources to both required regulatory and voluntary projects.

During the 2019 Session, the legislature determined that oversight of voluntary projects would be improved by using a regional watershed-based implementation system for them. It passed Act 76, which directs ANR to designate “clean water service providers” for each impaired water basin. The designated entities will likely be regional planning commissions, natural resource conservation districts, or local clean water associations. The providers will approve, implement, administer, and oversee clean water projects at the local level when the project is not required under a regulatory program. Act 76 requires ANR to assign a provider for each of the Lake Champlain basins by November 1, 2020. There are six Lake Champlain basins – areas of South Burlington are within either the Winooski River Basin or the Northern Lake Champlain Basin.

To help direct the providers’ oversight, ANR will establish the amount of pollution reduction that each provider will be responsible for achieving. By November 1, 2021, ANR will establish a methodology for determining the cost per unit of pollution reduction for clean water projects in the Lake Champlain basins. This will help the clean water service providers ensure that they are reducing pollution in the most efficient way. They will consider the costs and benefits of proposed projects’ phosphorus reduction as they weigh which projects to fund. The providers will report annually to ANR regarding implementation of clean water projects and compliance with their pollution-reduction goals.

This new service delivery model will be integral to the State meeting its clean water obligations for Lake Champlain.

 

Access to Justice for Victims of Childhood Sexual Abuse

One of the Judiciary Committee’s major accomplishments this year was eliminating the statute of limitations for civil lawsuits based on childhood sexual abuse. The statute of limitations that had been on the books denied access to justice for some victims of such abuse and enabled some abusers to avoid liability.

Sexual abuse of a child often leads to depression, post traumatic stress disorder, alcohol and opioid abuse, and many other health problems. Mental health experts categorize it as an “adverse childhood experience” that can lead to years of negative impact on the victim. However, victims of childhood sexual abuse often do not disclose the abuse or seek legal remedies until long after it occurred. They may not do so because the resulting psychological and emotional damage may not manifest itself until adulthood, they are ashamed of the abuse and keep it secret or repress the memory of the abuse, or they are initially reluctant to sue an abuser who was someone the victim trusted or someone in a position of power.

In short, victims may for years be unaware of the damage they suffer due to childhood sexual abuse or may bury the abuse. But they may eventually come forward. The average age for disclosure of childhood sexual abuse is 52 years old. If there is a restrictive statute of limitations, barring claims after just a few years, delayed disclosure can prohibit a victim from seeking justice in a courtroom.

Vermont law had provided that a victim could bring a civil lawsuit for childhood sexual abuse within six years after the abuse. Alternatively, the victim could bring a civil lawsuit within six years after the victim had “discovered” that an injury or condition was caused by the abuse. This is called the discovery rule. It extended the time within which a victim of childhood sexual abuse could bring a civil lawsuit against an abuser if the victim did not connect an injury with the abuse until long after the abuse occurred.

But, as the Judiciary Committee learned, there were problems with the discovery rule. Even though it extended the time to sue, it still imposed an unnecessary barrier to a victim’s ability to seek justice. Under the discovery rule, victims have to prove the point in time when they learned that their injuries were caused by previous abuse. There was no rational reason to place this burden on victims. The more important point in time is when victims are psychologically ready and able to pursue relief in a court of law.

Because of the drawbacks of the statute of limitations for lawsuits based on childhood sexual abuse, the legislature passed and the Governor signed Act 37 (H.330), which eliminates the statute of limitations for such lawsuits. A victim is now able to sue his or her abuser at any time, when ready to do so. The law also provides that the elimination of the statute of limitations for claims of childhood sexual abuse applies retroactively. That means that if a victim’s claim was barred by the previous statute of limitations, the victim is now able to bring the claim.

A victim of childhood sexual abuse can also make a claim against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse if that entity failed to exercise reasonable care to prevent the abuse. This law eliminates the statute of limitations for that claim as well.

Eliminating the statute of limitations to open the courthouse doors to adult survivors of childhood sexual abuse will shift the cost of abuse from the victims to the abusers, provide an additional deterrent to this conduct, and identify hidden child predators.

Funding Water Quality Improvement

Clean water is essential to Vermonters’ health, economy, and way of life. It is important to the State’s ecology, tourism industry, drinking water, and property values. But right now over 350 Vermont lakes, ponds, rivers, and streams have unsatisfactory water quality. The legislature has sought to address this complex issue over the past three Bienniums.

The Vermont Clean Water Act (Act 64) of 2015 was an important step in addressing water pollution statewide and meeting the State’s legal obligations under the federal Clean Water Act. Act 64 did not, however, include a necessary element for the successful implementation of the Vermont Clean Water Act: a long-term and stable funding source for the Clean Water Fund.

The State Treasurer, in a Clean Water Report submitted in January 2017, estimated that it will cost $2.3 billion over 20 years to achieve compliance with water quality requirements. The Treasurer projected that revenue from current sources available for water quality improvement over that period would be approximately $1.06 billion, leaving a 20-year total funding gap of $1.3 billion. To fill this gap, the Treasurer recommended that the State raise $25 million in additional revenues per year to dedicate to water quality. The gap in funding would initially be filled through bonded debt. The Treasurer evaluated a host of other revenue options to meet the funding needs starting in fiscal year 2020.

Based in part on the Treasurer’s report, the legislature in 2017 established a working group on water quality funding to develop draft legislation by December 2017 to implement an equitable and effective long-term funding source to support clean water efforts. The Working Group unfortunately failed to recommend a long-term funding method and instead proposed that the legislature continue to rely on government bonding for the next five years.

Recognizing that relying on bonding is not a sustainable long-term funding solution, the legislature made incremental progress last Biennium on identifying other revenues for the Clean Water Fund. It decided to continue a property transfer surcharge that was a component of Act 64 and to use unclaimed deposits on returnable beverage containers (called escheats). These sources of funds were still not sufficient, however, to cover the shortfall in necessary funding.

This year, the legislature reached agreement on an additional dedicated long-term funding source, which the Governor is expected to accept. The legislature decided to allocate 6% of the existing rooms and meals tax to the Clean Water Fund, resulting in $7.5 million in the upcoming fiscal year and almost $12 million annually thereafter. The tax is not being raised, but rather being reallocated. With these appropriations, along with funding included in the Capital Bill (bonded debt), the total available for clean water will be $50 million for fiscal year 2020 and $55 million per year thereafter.

These funding sources are not necessarily the revenue streams that I would have preferred to fund water quality improvements. I would have favored a revenue source that would promote mitigation (in other words, one that would encourage positive or discourage negative behavior) and would have a more direct relationship with water quality. An excise tax on fertilizers (reflecting the impact of phosphorous runoff) or a per-parcel fee (taking into account the impact of impervious surfaces on stormwater runoff) would have been more apt. Nevertheless, I did support the proposed solution because it relies on identified, dedicated and sustainable funding streams that the State can count on to protect this vital resource.

End of Session Report

Cleaning Up Vermont’s Waterways

Increasingly severe storms resulting from climate change are harming Vermont’s homes, farms, and businesses. Stormwaters scour unprotected topsoils, sending sediment down rivers and streams and into our lakes. That sediment feeds algae blooms and lowers water quality, threatening the survival of the fish and wildlife that depend on clean water. Left unchecked, stormwater reduces access to clean water and water recreation for Vermonters and lowers not only the market value of properties bordering water but also the value of grand lists for the towns in which those properties are located.

The legislature passed S.96, which would create a new way to allocate clean water funding. Prioritizing investment in clean water infrastructure incorporates climate change resilience in bridges, roads, and riparian barriers along the banks of our rivers and streams.

Clean water building projects mean economic growth measured in jobs and in the positive ripple effects on the economy that those jobs create. Clean water building projects mean farmers can prevent phosphorus and nutrient run-off into streams, rivers, and lakes. Clean water building projects mean Vermont can make progress on its path to satisfying its agreement with the Environmental Protection Agency to reduce phosphorus runoff into all of the basin’s waters.

Soil health and fertility also ties directly to the cleanup of Lake Champlain. When soil is full of biomatter, it acts like a sponge. Water does not “run off,” but instead it remains and generates growth. This describes regenerative farming. Furthermore, healthy soils and what they support (crops and pasture, forests and wetlands) pull out far more CO2 than sickly soil or parking lots.

The legislature passed S.160, which will jumpstart the pioneering work being done on food system strategies, ecosystem services, and carbon sequestration. Another bill codifies three healthy soil initiatives: the Vermont Environmental Stewardship Program, the Conservation Reserve Enhancement Program, and the Agriculture Environmental Management Program.

After many years of work and smaller incremental successes, the legislature also finally established a dedicated long-term funding source for the Clean Water Fund. We allocated 6% of the existing rooms and meals tax to the Fund, resulting in $7.5 million in the upcoming fiscal year and almost $12 million thereafter.

The rooms and meals tax, the property tax surcharge, and the escheats (unclaimed deposits), will all go into the Clean Water Fund and will be distributed to projects that reduce the most pollution for our investment. With appropriations through the Capital Bill, the Transportation Bill, and General Fund, the total available for clean water will be $50 million for fiscal year 2020 and $55 million per year thereafter.

Encouraging Electric Vehicles

The transportation bill (H.529) passed by the legislature includes a pilot program to help Vermont take a small step toward reducing greenhouse gas emissions and reducing the $800 million Vermonters spend on fossil fuels imported from out of state for transportation each year. Only about 3,000 plug-in Electric Vehicles are registered in Vermont today. Knowing that our Comprehensive Energy Plan looks to have 45,000 EV’s registered by 2025, this program would offer low to moderate income households a $2,500 incentive (or more for lower income households) toward the purchase or lease of a new or used plug-in EV. Also, this coming year, the Agency of Transportation has the goal of ensuring that there is a Level 3 “fast-charge” station within 30 miles of every Vermonter.

Banning Single-Use Disposable Products

The Governor signed S.113 into law, which bans some single-use disposable products, including single-use carryout plastic bags at point of sale (the plastic bags at retail and grocery stores’ checkout stations), single-use plastic straws (although establishments may offer plastic straws upon request), single-use plastic stirrers, and expanded polystyrene food service products.

The bill aims to help businesses by creating one consistent statewide program, rather than having numerous, municipal-based initiatives across the State, each with a different set of requirements. It will mitigate the harmful effects of these single-use products on the environment and recycling facilities, while relieving pressure on Vermont’s sole landfill to manage the disposition of single-use products. Overtime, this will save all Vermonters money by deferring the need to build additional landfill capacity in the future.

Regulating Toxic Substances in Drinking and Surface Waters

The legislature passed S.49 to regulate polyflouroalkyl substances in drinking and surface waters. Perflouroalkyl and ployflouralkyl substances (PFAS) are used in a wide variety of industrial and commercial processes and are found in everyday products such as non-stick cookware, water- and stain-repellent clothing, stain-resistant fabrics, carpets, cosmetics, firefighting foams, and other products that resist grease, water, and oil. These products are bio-accumulative, highly mobile in water, highly resistant to degradation, and toxic to humans in very small concentrations. Manufacturers continue to produce these chemicals and to produce thousands of alternative PFAS that are likely to pose significant health risks.

PFAS have been found in more than 400 drinking water wells in Bennington County, in private and public water supplies near the Southern Vermont Airport in Clarendon, and in a drinking water supply near Shaftsbury Landfill. The bill would establish an interim Maximum Contaminant Level (MCL) for five PFAS compounds, set deadlines for the Agency of Natural Resources (ANR) to finalize MCL and surface water standards for these compounds, and require PFAS testing of public water systems. The bill also establishes a public process for ANR to evaluate regulation of PFAS compounds in drinking water, complete a statewide evaluation of sources of PFAS contamination, and evaluate treatment options for PFAS in landfill leachate.

Protecting Pollinators

In recent years, the legislature has seen concern over the health of our pollinators, which include domesticated honeybees as well as our native pollinators like bumblebees, wasps, butterflies, and a host of other species including birds and bats. Pollinators serve a very important function, helping to produce the food we eat. It is estimated that we have lost 40% of the insect population in recent years, and one theory is that it is due to more prolific use of chemical pesticides including neonicotinoids.

The Governor signed H.205, an act that requires regulation of the sale and application of neonicotinoid pesticides in order to protect pollinator populations. The law also requires the Secretary of Agriculture, Food and Markets to register, as a restricted-use pesticide, any neonicotinoid pesticide labeled as approved for outdoor use that is distributed, sold, or offered for sale in the State. The increased registration fee for a neonicotinoid pesticide will be used to provide educational services, technical assistance, and increased inspection services related to neonicotinoid pesticides and pollinator health.

Another goal of H.205 is to educate beekeepers about the negative effects of viruses spread by Varroa mites. When they register their hives, beekeepers will be asked to report a current Varroa mite and pest mitigation plan for each registered hive.

The Agency of Agriculture, Food and Markets is tasked with establishing a training program that will address such subjects as bee health, Varroa mite identification and control, identification of common diseases or pests, and proper maintenance of hives. A person who completes the course will be awarded a Vermont Beekeeper Educational Program Certificate.

Increasing Renewable Energy

Increasing the proportion of electricity produced by renewable generation is good for Vermont.  The House passed two bills this year to build this capacity. S.95, which awaits the Governor’s signature, doubles the cap on net-metering projects as it applies to school districts. S.95 also sets a timeline for approval of new net-metering applications. H.133, which the Governor has signed into law, updates how small hydro projects get paid, so they receive a fair price. H.133 also adds energy storage systems to the types of electric facilities covered by grid planning and coordination.

Integrating renewable energy into our electric system insulates our economy from fossil-fuel price volatility. It provides more support jobs and keeps more of our utility expenditures in our local economy. It reduces our contribution to climate change by lowering greenhouse gas emissions. And it enhances our ability to weather the more frequent and more intense storms caused by climate change.

Our Environmental Commitment

Altogether, the FY2020 budget makes a number of investments to address environmental challenges like climate change. This year’s budget includes:

  • $2.8 million for electric vehicles and charging stations;
  • $38 million for public transit subsidies and park & ride facilities;
  • $35 million for rail subsidies and upgrades;
  • $16 million for home weatherization assistance for Vermonters of low and moderate income;
  • $500,000 for conservation of significant lands for forest integrity and watershed protection;
  • $50 million for clean water efforts;
  • Funding for working groups on Forest Carbon Sequestration; Carbon Emissions Reduction; Public Transit Ridership; a Transportation & Climate Initiative; the creation of an All Fuels Energy Efficiency Program; Building Energy Labeling; and Ecosystems Services.
  • The total budgetary investment in our environment, including existing and new funding, tallies $167 million.

JUDICIARY COMMITTEE ACCOMPLISHMENTS

Statute of Limitations Reform

Sexual abuse of a child often leads to depression, PTSD, alcohol and opioid abuse, and many other health problems. It is an Adverse Childhood Experience that can lead to years of negative impact on the victim. However, victims of childhood sexual abuse often do not disclose the abuse until long after it occurred. Victims are often ashamed of the abuse and keep it secret. They may suffer severe psychological and emotional damage that may not manifest itself until adulthood. Others develop an arsenal of defense mechanisms and may repress memory of the abuse for an extended period of time. In addition, the abuser may be someone the victim trusted or someone in a position of power. These associations can lead victims not to disclose their victimization promptly, if at all. The average age for disclosure of childhood sexual abuse is 52 years old.

Victims of childhood sexual abuse may seek monetary damages from their abuser in a civil action. Under current Vermont law, a victim can bring a civil lawsuit for childhood sexual abuse within six years after the abuse or within six years after the victim has “discovered” that an injury or condition was caused by the abuse. If there is a restrictive statute of limitations, delayed disclosure can prohibit a victim from seeking justice in a courtroom.

The Governor signed H.330, which eliminates the statute of limitations for bringing claims of childhood sexual abuse. Victims would be able to sue their abusers at any time, when they are ready to do so. The law provides that the elimination of the statute of limitations for claims of childhood sexual abuse applies retroactively. That means if a victim’s claim had been barred by the previous statute of limitations, the victim will now be able to bring the claim.

A victim of childhood sexual abuse can also make a claim against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse if that entity failed to exercise reasonable care to prevent the abuse. This bill eliminates the statute of limitations for that claim as well.

Medical Monitoring

Recognizing the need to protect Vermonters from the impact of toxic chemicals, the Vermont legislature enacted Act 154 in 2016. The law directed the Agency of Natural Resources to convene a working group to address the use and regulation of toxic chemicals. In January 2017, the working group recommended that the legislature should enable individuals to recover the expense of medical monitoring for diseases when they have been exposed to toxic substances due to another’s wrongful conduct.

Medical monitoring is a program designed by experts in the field of public health and medicine. It includes screening and ongoing observation to detect the symptoms of latent diseases linked to exposure to a toxic substance. Monitoring allows for the earliest detection and treatment of these latent diseases. Similar to early detection efforts such as mammograms and colonoscopies, this program ensures the best possible health outcomes at the least cost. It ensures that those harmed are screened and referred for medical care at the earliest possible time when effective treatment can improve outcomes.

Both the House and the Senate passed S.37, which would ensure that the cost of medical monitoring is not borne by the general public or the harmed individuals, as currently is the case. Rather, that cost would be paid by the industrial entity that caused the need for incurring those health costs.

It would not be easy for individuals to prove that they are entitled to the remedy of medical monitoring. Individuals will have to convince a judge or jury that a company wrongfully exposed them to a known toxic substance; that the exposure to the toxic chemical increases their risk of developing a latent disease; that the exposure was at a level that could credibly trigger the need for medical monitoring; and that there are diagnostic tests that can detect the latent disease. While it sets a high bar of proof, the bill would provide a path for Vermonters to receive a remedy that is not currently available under Vermont law. It is not clear whether the Governor will veto this bill due to concerns expressed by businesses.

Firearm Violence Prevention

The presence of a firearm dangerously compounds the risk of impulsive acts of violence, especially suicide. Waiting periods create an important cooling-off window for gun purchasers to reconsider their intentions, which can lead to a change of heart and a saved life. In addition, waiting periods provide additional time for the completion of a thorough background check. S.169, passed by both the House and Senate, would establish a 24-hour waiting period for the purchase of handguns.

Many suicide attempts occur with little planning during a short-term crisis and those who attempt suicide impulsively are more likely to choose a violent method. Studies confirm that most suicide survivors contemplated their actions for only a brief period of time – often less than 24 hours – before making a suicide attempt. Firearms are the most lethal means of suicide, with over 85% of firearm suicide attempts resulting in death. This fact is especially important because almost all people who survive a suicide attempt go on to live out their lives and do not subsequently die by suicide.

In addition to helping prevent suicides, this waiting period may also help prevent homicides. Firearms are the most frequently-used weapons in domestic homicides and over half of all homicides in Vermont are domestic violence-related. A cooling-off period can help prevent impulsive violence in domestic disputes. A 2017 study in the Proceedings of the National Academy of Science estimated that waiting periods for handgun purchases reduce gun homicides by roughly 17% and gun suicides by 7 to 11%.

A waiting period for handgun purchases would also help in combatting the drug trade. Currently, traffickers bring drugs into Vermont and exchange them for handguns, some purchased by Vermont residents near the time of the transaction. The waiting period would be an obstacle to such a deal and would make Vermont less attractive to those trading drugs for guns.

In the end, however, it is the logic of a waiting period that provides the strongest rationale for the passage of S.169. Lethal harm to oneself or another can occur when an impulsive act is combined with access to a lethal weapon. A waiting period provides time to cool off, to let the heat of the moment pass, to distance impulsivity from the ability to acquire a handgun.

In addition to providing a cooling-off period, this waiting period addresses a gap in the law, known as “default proceed” or the Charleston Loophole. Federal law allows a dealer to deliver a gun to a purchaser as soon as a background check is completed, which usually takes only a few minutes. Sometimes, however, a background check may not be completed instantly. In such a situation, after three business days have passed, the dealer may still provide the firearm to the purchaser, even if a background check is incomplete. S.169 would close this gap. The 24-hour waiting period would commence upon completion of the background check, including in those instances when law enforcement needs additional time to do its work, such as, for example, determining if the purchaser is subject to a domestic violence restraining order.

S.169 also eases restrictions on the transfer and use of large capacity magazines. Last year, the legislature passed Act 94, which placed restrictions on high-capacity magazines. The law, however, allowed large capacity magazines to be transported into Vermont for use in shooting competitions. But under current law, that authority will sunset in June of this year. S.169 would allow the continuation of the transport of these devices for organized shooting competitions. Without the provisions in S.169, such shooting competitions in Vermont would effectively come to an end.

OTHER STATE HOUSE ACCOMPLISHMENTS

Multi-Bill Effort to Reduce Vaping and Tobacco Use Among Youth

Despite trendlines of decreasing tobacco use in recent decades, the presence of vaping and e-cigarettes has created a new crisis point. From 2017 to 2018, e-cigarette use among high school and middle school students rose 78% and 48%, respectively. That amounted to the biggest one-year spike of any substance in nearly 50 years and prompted the U.S. Surgeon General to declare a public health crisis.

The House Human Services Committee spent many hours this year developing strategies to reduce the number of young Vermonters who use vaping and tobacco products. One bill (S.86), signed into law by the Governor, raises the legal age for buying and using cigarettes, electronic cigarettes, and other tobacco products from 18 to 21 years of age. S.86 is part of a three-pronged strategy this legislative session to make it more difficult for youth to obtain and afford tobacco products. Earlier in the session, legislators overwhelmingly approved another bill (H.26) ending Internet sales of e-cigarettes, and a third (H.47) placing a 92 percent excise tax on them. The Governor signed these into law as well.

Reproductive Liberty for Vermonters

The Vermont Legislature approached reproductive liberty on two separate fronts this year: a constitutional amendment and a new statute. For more than 40 years, Vermonters have relied on protections offered by U.S. Supreme Court case law to support personal autonomy in reproductive health decisions, and citizens of the Green Mountain State have not chosen to limit or restrict those protections. Vermonters have long recognized that decisions related to reproductive health care and abortion are deeply personal and private, and are best left to a woman and her doctor.

The legislature approved Proposition 5, a Vermont constitutional amendment that would protect personal reproductive autonomy. The lack of a definitive enumeration of reproductive liberty in Vermont’s Constitution, the threats to Roe v. Wade from a very conservative U.S. Supreme Court, and the cloud of multi-state efforts to erode reproductive autonomy all build a strong case for Proposition 5.

The proposed constitutional amendment now awaits consideration by the 2021-2022 legislature. If it passes both chambers again during the next biennium, Vermonters will vote in 2022 on whether to add the language in Proposition 5 to the State Constitution.

Earlier this year, the House passed H.57 to ensure that women’s access to abortion continues to remain unconstrained by law with a strong vote of 106-37; the Senate approved H.57 by a vote of 24-6. The Governor has said he will not veto the legislation, which will become law without his signature. The bill and the constitutional amendment go hand-in-hand to guarantee Vermonters’ access to reproductive liberty both in statute and in the Vermont Constitution.

Child Care Assistance for Vermont Families

The Child Care and Early Learning bill (formerly H.531) is a $7.5 million State investment that aims to make child care more accessible and affordable for Vermont families, as well as to open up new child care spaces statewide. The legislation also seeks to support the retention and professional development of child care workers.

The bill adjusts the market rates and benefit levels for the Child Care Financial Assistance Program to ensure that families whose gross income is up to 100 percent of current federal poverty guidelines receive 100 percent assistance. The new eligibility guidelines expand the financial subsidy to a wider swath of middle-income families too.

In addition, the bill seeks to retain child care providers working in the field, many of whom struggle to earn livable wages while paying off sizable college loans. It also provides internship compensation and scholarship assistance to support current child care workers (in both center- and home-based care), as well as attract new workers to the early learning field.

Economic Development

We want to create an economy that works for all Vermonters, not just a select few, an economy where our workers can find well-paying jobs and a secure future, with success at any age. To create a strong Vermont economy, the House Committee on Commerce and Economic Development focused on the areas of consumer protection, workforce development, and economic development.

This year’s economic development bill (S.162) supports a range of programming. It will promote training opportunities for small companies, create weatherization training programs, create a Career Technical Education Program for robotics training, decrease barriers for new American citizens to enter the workforce, and provide advancement grants for additional adult training and workforce education. The bill will also help employers hire workers with barriers to employment, fund social media marketing campaigns, and provide relocation support.

In Vermont, every industry faces workforce needs, especially in health care, construction, hospitality, transportation, and advanced manufacturing. We want to see more Vermonters employed in meaningful skilled jobs through completing apprenticeships, certificates, and associate degrees. The legislature seeks to help employers hire more employees and help employees get hired in good-paying jobs that match their skills.

Creating an Education System for All of Us

The House is committed to eliminating structural racism to build a truly just and equitable society. People of all races and genders who live in, work in, and visit Vermont should feel welcome and safe. With that goal in mind, one of the first proposals the House Education Committee took up this year was the ethnic studies bill (H.3). The bill passed both the House and Senate by unanimous roll-call votes in February and was signed into law as Act 1. The law aims to identify structural racism in Vermont schools, reduce bias, and build a culture of equity by teaching students the history of all of us, including ethnic and social groups that historically have been marginalized, harassed, discriminated against, or persecuted.

Act 1 establishes a working group that will review Vermont’s education standards to determine if they meet those goals. By June 2021, the task force will recommend to the State Board of Education any updated or new standards. Each school will then be guided by these standards in reviewing—and, if necessary, revamping—its classroom practices, curriculum, and extracurricular programs.

Act 1 will help Vermont students better understand the history, contributions and perspectives of people whose stories are often not told in textbooks. It will promote cultural competency and critical thinking. It will allow students to safely explore questions of racial, social, and gender identity. It will reduce hatred and bias, making our schools safer. And it will prepare our young people to work, live, and thrive in a world that is increasingly diverse.

Broadband Build Out

Access to reliable, affordable high-speed internet service is essential for full participation in modern society. Yet roughly 17,000 Vermont households lack access to even the most basic internet service. Another 50,000 homes and businesses struggle with connection speeds that do not support 21st Century tasks. These unserved and underserved households are typically in the most rural parts of the State, where the costs of connecting to broadband internet are the highest.

This year the Vermont House passed H.513 to get high-speed internet service to the farthest corners of our State. The bill empowers local municipalities to determine the connectivity solutions most appropriate for their communities and provides financing programs to get local initiatives off the ground. It funds a technical specialist to support local groups. It explores alternatives such as allowing electric utilities to provide internet service using existing infrastructure. It streamlines procedures so providers can build broadband access more quickly and cost-effectively to our most rural communities.

A Vermont that works for everyone, regardless of where they live, must have high-speed internet access in every corner of the State. While change will not happen overnight, this year we are finally taking concrete steps to build on grassroots success stories, create viable business plans, facilitate start-up financing, and get real results.

            Making Investments in a Strong

Vermont Future

The legislature passed a balanced budget for fiscal year 2020, which goes into effect on July 1, 2019. The $6.1 billion budget represents a 2.6% increase over the previous year.

The budget is a blueprint representing our priorities and shared Vermont values. It includes significant investments in the health of our natural environment, the development of our workforce, the growth of our economy, and the needs of vulnerable Vermonters. It also makes payments towards long-term liabilities.    Highlights include:

  • $1.6 million for small business support in agriculture, forestry, and other working lands enterprises;
  • $2.8 million in tax credits for redevelopment of Designated Downtowns and Village Centers;
  • $1.3 million for regional development corporation block grants;
  • $1.2 million in matching funds to businesses for training incumbent workers to gain skills resulting in higher salaries at those same businesses;
  • $7.4 million, added to a $5.8 million base, plus $1.6 million in one-time funds for child care, supporting families and providers, as well as workforce incentive pilots and system investments;
  • $1.3 million added to master grant funding for Parent Child Centers in support of services to young families;
  • $1.5 million for appropriate community placements for persons with complex mental health challenges;
  • $2.5 million added to provide a benefit increase in the Reach-Up Program;
  • An additional $5.2 million to designated agencies across the entire system of mental health and developmental services;
  • An additional $2.1 million for a 2% increase for home and community service providers in Choices for Care; and
  • An additional $445,000 for court diversion plus a 5% increase for court security services.

Keeping Our Promises

There are three State retirement systems: the Vermont State Teachers’ Retirement System (VSTRS), the Vermont State Employees Retirement System (VSERS), and the Vermont Municipal Employees Retirement System (VMERS). They cover a substantial number of Vermonters.

Currently, VMERS is funded at 82.2%, VSERS at 70.7%, and VSTRS at 55.2% of the levels needed to meet the State’s projected pension liability. All three systems were adversely affected by the 2007 recession, and have been recovering. The status of VSTRS, however, reflects the decision by policymakers from 1991 through 2006 to use funds for other purposes that should have been used to cover the actuarially required annual contribution. Since 2007, when a 30-year catch-up plan was established, contribution has been no less than 100%. This year, as an example, State policymakers committed $120 million to the system, with the understanding that an average of $150 million will be required each of the next twenty years.

This catch-up plan requires significant investments, pitting pension obligations against current needs in other parts of the budget. Some would like to see the State go in an entirely different direction, changing from the long-existing defined benefit to a defined contribution approach, similar to an IRA plan. This idea has not gained traction. The State made a commitment to these three classes of employees — it is a contract, and a promise, not to be broken. Throughout the years, employees have made their required contributions. They have agreed to increases in employee contributions and a raise in the age for normal retirement, among other changes. These compromises, together with the use of one-time revenue to bump up the financial underpinnings of VSTRS and VSERS, are currently on target to save taxpayers approximately $1.3 billion in interest payments by 2038.

Adequate and reliable income in retirement helps our economy. According to the State Treasurer, retiree expenditures attributable to the pension benefits support 2,809 jobs for Vermonters. Additionally, the stability of the pension is key to reduced elderly poverty, with fewer individuals needing to rely on state and public assistance.

 

 

 

Report for S.169 – a bill to establish waiting periods

The following is the report that I delivered to the House on S.169, which addresses procedures related to firearms and establishes a 24-hour waiting period for the purchase of handguns.

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S.169 amends certain provisions of last year’s Act 94 related to large capacity ammunition feeding devices, which I will refer to as large capacity magazines, and background checks.  It also clarifies the implementation of the extreme risk protection orders in last year’s Act 97. Finally, it creates a 24-hour waiting period for the purchase of handguns.

I will first discuss the waiting period and then turn to the other provisions of the bill.

The presence of a firearm dangerously compounds the risk of impulsive acts of violence, especially suicide.  Waiting periods create an important cooling off window for gun purchasers to reconsider their intentions, which can lead to a change of heart and a saved life.  In addition, waiting periods provide additional time for the completion of a thorough background check.

S.169 would establish a 24-hour waiting period for the purchase of handguns. In urging this body to concur with the Senate bill, I will discuss five rationales for supporting this bill: the stories of Vermonters, expert testimony, data, logic, and compromise.

By stories, I mean the real-life accounts of family, friends, and neighbors lost to firearm violence. In December Andrew Black committed suicide in Essex with a handgun that he had purchased four hours earlier. Rob Black explained to the House Judiciary Committee that his son had shown no signs of depression.  A breakup with his girlfriend triggered the impulsive act of purchasing a handgun and, shortly after, using it to end his life. A waiting period could have interrupted this chain of events. Others testified to the traumatic effect of suicide on those who knew the victim and live with the doubt and questions as to what they could have done differently to help their friend or family member avoid that fate.

As for expert testimony, the Judiciary Committee heard from a specialist in pediatric critical care who is also a member of the Community Violence Prevention Task Force. She testified that many suicide attempts occur with little planning during a short-term crisis and that those who attempt suicide impulsively are more likely to choose a violent method.  Studies confirm that most suicide survivors contemplated their actions for only a brief period of time – often less than 24 hours – before making a suicide attempt.

Firearms are the most lethal means of suicide, she explained, with over 85% of firearm suicide attempts resulting in death. This fact is especially important because almost all people who survive a suicide attempt go on to live out their lives and do not subsequently die by suicide.  Contrary to common belief, the vast majority of suicide survivors recover and do not remain suicidal.

Based on this witness’s experience and her understanding of the scientific studies, she concluded that restrictions on highly lethal means would lead to fewer suicide deaths. A waiting period for purchasing handguns is such a restriction. National and State physician organizations support this conclusion.  The American Academy of Pediatrics, the American College of Physicians, the American Medical Association, the Vermont Chapter of the American Academy of Pediatrics, and the Vermont Medical Society all support the passage of a waiting period.

In addition to helping prevent suicides, this waiting period may also help prevent homicides.  A representative of the Vermont Network Against Domestic and Sexual Violence testified that firearms are the most frequently-used weapons in domestic homicides and that over half of all homicides in Vermont are domestic violence-related. A cooling off period can help prevent impulsive violence in domestic disputes.

Some argue that victims in domestic abuse situations need handguns immediately for selfdefense.  But handguns are not a panacea in those situations.  The witness from the Network explained that firearms do not increase victim safety and are rarely used in self-defense by victims of domestic violence – for every one time a woman used a handgun to kill someone in self-defense, 83 women were murdered with a firearm by their partner.  She concluded that S.169 would reduce the likelihood of these impulsive acts of violence.

Representatives of the Attorney General’s Office and of the Department of State’s Attorneys and Sheriffs testified, supporting the bill as a positive step for public safety.  They also noted that having a waiting period for handgun purchases would help in combatting the drug trade.  Currently, traffickers bring drugs into Vermont and exchange them for handguns, some that are purchased by Vermont residents near the time of the transaction. The waiting period would be an obstacle to such a deal.  It would make Vermont less attractive to those trading drugs for guns.

Data also supports S.169.  Studies published in respected scientific journals support the conclusion that a waiting period will reduce firearm violence. A 2015 study in the American Journal of Public Health published research showing that states with waiting period laws had 51% fewer firearm suicides and a 27% lower overall suicide rate than states without such laws. When South Dakota repealed its 48-hour waiting period for handgun purchases in 2009, overall suicides the following year increased by 7.6% compared with a 3.3% increase for the United States in general.

Another Study from 2017 in the Proceedings of the National Academy of Science concluded that a cooling off period significantly reduces the incidence of gun violence.  The authors estimated that waiting periods on handguns reduce gun homicides by roughly 17% and gun suicides by 7 to 11%.

In the end, however, it is the logic of a waiting period that provides the strongest rationale for the passage of S.169.  Lethal harm to oneself or another can occur when an impulsive act is combined with accessibility to a lethal weapon.  A waiting period provides time to cool off, to let the heat of the moment pass, to distance impulsivity from the ability to acquire a handgun.

I’ve talked about stories, expert testimony, data, and logic.  Another reason to support S.169 is that it reflects a compromise between proponents and opponents of firearm restrictions. The bill eases a number of restrictions on the transfer and use of large capacity magazines. Under current law, individuals may not transfer large capacity magazines in Vermont.  S.169 provides that individuals who own large capacity magazines may transfer them to immediate family members in a will.

In addition, last year’s law allowed large capacity magazines to be transported into Vermont for use in shooting competitions.  But under current law, that authority will sunset in June of this year.  S.169 would allow the continuation of the transport of these devices for organized shooting competitions. Without the provisions in S.169, such shooting competitions in Vermont would effectively come to an end.

Furthermore, the bill broadens the definition of immediate family members who do not need to obtain a background check for private sales or transfers between immediate family members.  In short, these provisions reduce certain restrictions on firearm owners.

The terms of the waiting period itself also represent a compromise.  Proponents of a waiting period urged the legislature to have a longer waiting period – either 48 or 72 hours.  They also wanted the waiting period to extend to all firearms. A 24-hour period for handguns is a compromise that reduces the burden of the waiting period on gun shows while also providing the important interruption of impulsive purchases and impulsive intent to harm oneself or others.

Having the waiting period extend to handguns only will still provide significant benefits.  According to the Department of Justice, Bureau of Justice Statistics, between 1993 and 2011, handguns were used in from 70 to 84 percent of firearm-related crimes. A study of firearm fatalities conducted by Vermont Public Radio found that handguns are used in 2/3 of firearm suicides in Vermont.

Section by Section Summary

  1. 169 makes several amendments related to firearms procedures.

Section 1 of the bill deals with large capacity magazines.  Last year, the General Assembly passed Act 94, found at 13 VSA § 4021, which generally prohibits the possession of large capacity magazines – no more than 10 rounds for long guns and no more than 15 rounds for handguns.  There were a number of exceptions to this general prohibition, and Section 1 of this bill concerns those exceptions.

First, subdivision (c)(1)(A) provides that a Vermont resident who lawfully possesses a large capacity magazines may transfer it from one immediate family member to another immediate family member by a lawfully executed will. As provided in Section 2 of the bill described below, the definition of immediate family member is expanded.

Second, in subdivision (d)(1)(B), the prohibition on possession of large capacity magazines does not apply if the device is transferred to or possessed by a Vermont or federal law enforcement officer for legitimate law enforcement purposes. However, law enforcement officers from other states were omitted, so S.169 includes them here.  This subdivision provides that the prohibition does not apply to a large capacity magazines possessed by an out-of-state law enforcement officer who is called into this State to assist a Vermont officer for legitimate law enforcement purposes.

Act 94 also included an exception to the magazine ban for devices transported into Vermont by a resident of another state for a shooting competition. However, this exception was sunsetted, so it expires on July 1, 2019.  S.169 makes three changes to this exception: (1) First, the language is changed slightly from an “established” shooting competition to an “organized” shooting competition, which the sportsmen’s groups indicated more accurately describes the events; (2) Second, the exception is expanded to include Vermonters as well as out of state residents, so Vermonters can possess and use large capacity magazines at the competitions so long as the device was grandfathered in by being lawfully possessed on or before October 1, 2018; (3) and Third, which you have to turn to Section 6 at the end of the bill to see, the sunset on the shooting competition is repealed, which means that possession and use of the magazines at shooting competitions will continue to be permitted in the future.

Section 2 of the bill addresses the background check requirement for firearms purchases, which was also established in Act 94 last year.  Under that provision, background checks were generally required for all firearms transfers, though again there were a number of exceptions.  One of those exceptions applied to transfers between immediate family members.  Section 2 of the bill expands the list of immediate family members to include a parent-in-law, a sibling-in-law, aunt, uncle, niece, and nephew.  As a result, transfers between additional family members can be made without needing a background check.

Section 3 of the bill establishes the new waiting period requirement for hand gun transfers. Under this section, a handgun cannot be transferred until 24 hours after completion of the background check required by federal or state law.

In addition to providing a cooling off period, this waiting period addresses a gap in the law, known as “default proceed” or the Charleston Loophole.  Federal law allows a dealer to deliver a gun to a purchaser as soon as a background check is completed, which usually takes only a few minutes.  Sometimes, however, a background check may not be instantly completed.  In such a situation, after three business days have passed, the dealer may provide the firearm to the purchaser, even if a background check is incomplete.  Each year over 3000 ineligible persons receive firearms through this default provision nationwide.  Dylann Roof was one individual who obtained a firearm without a completed background check, which would have revealed that he was a prohibited person, not allowed to obtain a firearm.  He used that firearm to kill nine people at Emanuel AME Church in Charleston.

Individuals should not be able to skirt the background check by taking advantage of this gap in the law.  S.169 would close this gap.  The 24-hour waiting period would commence upon completion of the background check, including in those instances when law enforcement needs additional time to do its work, such as, for example, determining if the purchaser is subject to a domestic violence restraining order.

Under subsection (c), the waiting period does not apply to a transfer that does not require a background check.  This means that a hand gun may be transferred without a waiting period if one of the exceptions to the background check requirement applies, such as transfers between immediate family members and law enforcement officers, transfers in emergency situations, or temporary loans.

Sections 4 and 5 of the bill concern Vermont’s extreme risk protection order statute that was passed in Act 97 last year. Act 97 established a procedure for a State’s Attorney or the Attorney General to obtain a court order, called an Extreme Risk Protection Order (known as an ERPO).  Such an order temporarily prohibits a person from possessing a dangerous weapon if the court finds that the person’s possession of the weapon poses an extreme risk of harm to the person or to other people. It came to the Senate Judiciary Committee’s attention, however, that some health care providers who would like to provide relevant information to law enforcement officers about potentially dangerous people are unsure if they can do so without violating the privacy provisions of HIPAA, the Health Insurance Portability and Accountability Act of 1996.

When the Senate Judiciary Committee reviewed this issue, it discovered that HIPAA already includes a relevant exception.  Health care providers can disclose information when the provider believes in good faith that disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public. This imminent threat standard is essentially the same as the extreme risk standard that we have in the ERPO law.  Section 4 makes that connection explicit by clarifying that an imminent threat includes circumstances when the health care provider reasonably believes that the patient poses an extreme risk of causing harm to himself or herself or another person by purchasing, possessing, or receiving a dangerous weapon.  Having this language gives health care providers the confidence to let law enforcement officers know when an extreme risk exists.

Section 5 is an attempt to gather information on the use of ERPOs in Vermont. It requires the Court Administrator, with the assistance of the Agency of Human Services, to report data on ERPO use annually to the Senate and House Committees on Judiciary.  The report will include the number of petitions filed and the number of orders issued, the county where the petition was filed, and follow-up information describing whether the order was renewed or terminated and whether the subject of the order was charged with violating it. In addition, the Agency of Human Services is required to include in the reports an analysis of the impact of extreme risk prevention orders on Vermont suicide rates.

As I mentioned earlier, Section 6 repeals the sunset for use of large capacity magazines in organized shooting competitions.

Section 7 provides that the bill takes effect on passage.

We heard from numerous witnesses.  We also held a  public hearing where we heard from 61  community members.

The vote in committee was 7-4-0.

 

Report for S.37 – a bill to establish the cause of action for medical monitoring

This is the report that I delivered on the House Floor regarding S.37.

S.37 has two components.  First, it would establish the criteria under which people wrongfully exposed to toxic substances could sue to have the polluter pay for monitoring their medical condition.  Second, it expands the type of entities that can be held liable for the cost of cleaning up hazardous materials that are released into the environment.  I will first address medical monitoring.

During the winter of 2016, the State of Vermont discovered widespread contamination of private drinking water supplies with perfluorooctanoic [Per fluro octa no ick] acid (PFOA) in Bennington County. Perfluorinated compounds such as PFOA are manufactured chemicals used to make a variety of commercial and household products. PFOA does not easily break down and persists in the environment for decades, particularly in water. Studies have shown a correlation between levels of PFOA in the blood and a variety of illnesses including high blood pressure, decreased birth weight, some immune system effects, thyroid disease, kidney cancer, and testicular cancer.

PFOA has been largely unregulated for decades under federal and Vermont law. But it is just one example of chemicals that pose risks to human health and the environment.  There are approximately 85,000 chemicals on the federal Chemical Substance Inventory and thousands of chemicals used that are not even on a list of toxic substances.  Only about 200 of these chemicals have had robust health and safety testing by the federal Environmental Protection Agency.

Recognizing the need to protect Vermonters from the impact of toxic chemicals, the Vermont General Assembly enacted Act 154 in 2016. The law directed the Agency of Natural Resources to convene a working group to address the use and regulation of toxic chemicals.  Among other tasks, the working group was to recommend how to fill gaps in Vermont laws in order to better protect Vermonters from exposure to harmful chemicals, and to help them if they are impacted by toxic contamination.

In January 2017, the working group published its final report.  It recommended, in part, that the legislature should authorize individuals to recover the expense of medical monitoring for diseases when exposed to toxic substances due to another’s wrongful conduct.  S.37 is the response to this recommendation.

Medical monitoring is a program designed by experts in the field of public health and medicine.  It includes screening and ongoing observation to detect the symptoms of latent diseases linked to exposure to a toxic substance.  Monitoring allows for the earliest detection and treatment of these latent diseases.  Similar to early detection efforts such as mammograms and colonoscopies, this program ensures the best possible health outcomes at the least cost. It ensures that those harmed are screened and referred for medical care at the earliest possible time when effective treatment can improve outcomes.

S.37 ensures that the cost of medical monitoring is not borne by the general public or the harmed individuals, as currently is the case. Rather, that cost is paid by the industrial entity that caused the need for incurring those health costs.

It will not be easy for individuals to prove that they are entitled to the remedy of medical monitoring.  Individuals will have to convince a judge or jury that a company wrongfully exposed them to a known toxic substance; that the exposure to the toxic chemical increases their risk of developing a latent disease; that the exposure was at a level that could credibly trigger the need for medical monitoring; and that there are diagnostic tests that can detect the latent disease. While it sets a high bar of proof, the bill would provide a path for Vermonters to receive a remedy that is not currently available under Vermont law.

In short, the bill provides that those responsible for wrongfully exposing Vermonters to toxic substances known to cause diseases will bear the costs of monitoring for those diseases.

Section-by-section explanation

Section 1. Adds a new chapter to Title 12—12 V.S.A. chapter 219 – Medical Monitoring

12 V.S.A. § 7201 provides relevant definitions for the Chapter.  I will come back to the pertinent definitions as I explain the next section of the bill, which sets forth the test for obtaining Medical Monitoring relief for Exposure to Toxic Substances

  • 12 V.S.A. § 7202(a) authorizes a cause of action for medical monitoring by a person, without a present injury, against the owner or operator of a large facility from which a toxic substance is released if all of the following are demonstrated by a preponderance of the evidence:

Some of the terms in this provision require further explanation.

First, only people without a present injury can sue for medical monitoring under S.37.  Those who have already developed a disease from exposure to a toxic substance are already able to sue for harm caused to them, including medical monitoring costs.

Second, not all facilities are included in the scope of S.37.  It must be a Large Facility, first of all.

  • Section 7201 defines large facility as a facility:
  • where an activity with certain Standard Industrial Classification codes (SIC codes) is conducted or was conducted. The included SIC codes cover mining, manufacturing, and transportation businesses. The classification codes do not include agriculture or the health care industry.
  • A facility is also defined as “large” where 10 or more full-time employees have been employed at any one time; or that is owned or operated by a person who, when all facilities or establishments the person owns or controls are aggregated, has employed 500 employees at any one time.
  • The House version of this section narrows the definition of “large facility.”In the Senate version, anyfacility with 10 or more full-time employees would be subject to the law.Under the House version, those facilities must also fall under one of the SIC codes.
  • Third, section 7201 defines toxic substance as any substance, mixture, or compound that may cause personal injury or disease to humans through ingestion, inhalation, or absorption through any body surface and that:
  • Is listed on EPA’s list of hazardous substances recognized by federal laws [CERCLA, RCRA, EPCRA, CAA lists];
  • Is a hazardous material or hazardous waste under State law;
  • Has been determined by National Institute for Occupational Safety and Health or EPA testing to pose acute or chronic health hazards;
  • Is the subject of a public health advisory from the Vermont Department of Health; or
  • exposure to the substance is shown by expert testimony to increase the risk of developing a latent disease.
    • I will note here that other states have established the remedy of medical monitoring through court-made law. The courts generally do not define what a toxic substance is.  Rather, they usually refer to a “proven hazardous substance,” without explaining how the substance is proven to be hazardous.  Accordingly, in these states there is no clarity or limits surrounding what is considered a toxic substance.  37 takes a different approach by providing a definition of toxic substances.
  • Properly and lawfully applied pesticides and ammunition and components thereof are not toxic substances for the purposes of S.37.

Turning back to the test for proving the entitlement to medical monitoring, the person must prove all of the following four elements by a preponderance of the evidence:

  • The first element provides that the person was exposed to the toxic substance as a result of tortious conduct by the owner or operators of the large facility or persons under their control;
    • Tortious conduct includes the common law torts of negligence, trespass, nuisance, product liability, or common law liability for ultra-hazardous activity. Tortious conduct is a standard used in other states.  But S.37 limits the scope of what is to be considered tortious conduct by defining the universe of torts.  Other states do not do this and courts have expanded the cause of action beyond the traditional torts.  37 is limiting in the scope of action when compared to some other jurisdictions.
  • The second element of the test provides that as a proximate result of the exposure, the exposed person has a greater risk of contracting a latent disease;
    • Disease is defined in 7201 as any disease, illness, ailment, or adverse physiological or chemical change linked to exposure to a toxic substance.
  • The third element of the test provides that diagnostic testing is reasonably necessary. Testing is reasonably necessary if a physician would prescribe testing based on the fact that the increased risk of contracting the disease due to the exposure makes it reasonably necessary to undergo diagnostic testing that is different from what would normally be prescribed in the absence of exposure. This must be shown by expert testimony.
    • Breaking this provision down, the issues are:
      • Whether the increased risk is sufficient to make diagnostic testing reasonably necessary and
      • Whether the diagnostic testing would be prescribed in the absence of exposure to the toxic substance.
    • The final element of the test provides that medical tests or procedures exist to detect the latent disease.

I will reiterate here that proving these elements would be very difficult and would be developed through expert testimony.

  • Subsection (b) provides that if medical monitoring damages are awarded, a court shall order the liable entity to pay the award to a court-supervised medical monitoring program administered by a health official with expertise in toxic exposure or the relevant latent disease.
  • Subsection (c) provides that upon an award of medical monitoring damages, the court shall also award the prevailing party reasonable attorney’s fees and costs.
  • Subsection (d) provides that nothing in the new chapter authorizing medical monitoring damages precludes the pursuit of any other civil or injunctive remedy available under statute or common law. Except that this law provides the exclusive medical monitoring remedy for individuals without a present injury.
  • Subsection (e) clarifies that the exclusive remedy for employees injured at work is through workers compensation. However, if the employee is wrongfully exposed to a toxic substance and has no present injury, the employee may seek a remedy under the procedures created in S.37.

Section 2 – Session law

  • The right of a person to bring a cause of action for medical monitoring shall apply retroactively to an exposure to a toxic substance that was discovered by the person in the six years prior to July 1, 2019. The six-year period is consistent with the statute of limitations for civil actions where there is no personal injury.  12 VSA 511.

That concludes the section-by-section analysis of the medical monitoring component of the bill.

Courts in 16 states have recognized a medical monitoring cause of action or remedy. Each state court has created its own test based on the facts and circumstances in the case before it. There is not one test for medical monitoring. The test for medical monitoring in S.37 is not more lenient for people seeking relief than the tests in states providing court-created remedies for medical monitoring.

Indeed, in some respects S.37 creates a right to sue that is narrower than that provided in other states.  The bill limits the cause of action to releases from a subset of large facilities, a limitation not recognized in any other states. Unlike other states, the bill defines disease and defines toxic substance.  Finally, no states include the exemptions that S.37 contains. In this respect, S.37 provides more clarity than tests in other states that have been developed in judicial opinions.  This is one of the advantages of addressing this issue legislatively rather than through the courts.  By enacting S.37, we are able to define these terms and place limits on the applicability of this cause of action based on the broader policy that serves Vermonters best.

Several policy considerations support enacting a medical monitoring cause of action:

First, there is an important public health interest in fostering access to medical testing for individuals whose wrongful exposure to toxic chemicals creates an enhanced risk of disease, particularly in light of the value of early diagnosis and treatment. The availability of medical monitoring may prevent or decrease the severity of future illness and reduce the costs for everyone involved. The early detection of latent diseases may improve the prospects for cure, treatment, prolongation of life and minimization of pain and disability.

Second, there is a deterrence value in recognizing medical monitoring claims – allowing plaintiffs to recover the cost of this care deters irresponsible discharge of toxic chemicals.

Third, standards of fairness and justice are better served by allowing recovery of medical monitoring costs. It would be inequitable for individuals wrongfully exposed to dangerous toxins to have to pay the expense of medical monitoring through no fault of their own.

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I will now turn to the second component of this bill. It holds entities liable for the costs of cleaning up hazardous materials they released into the environment.

Section 3 of S.37 amends section 6615 of Title 10, which is part of Vermont’s Waste Management Act and in many respects parallels the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

One of the purposes of the Vermont Waste Management Act is to make generators of waste pay for disposal costs that reflect the real costs to society of waste management and disposal. [10 V.S.A. 6601]

Section 6615 protects public health and the environment by facilitating the cleanup of hazardous-waste sites.  It ensures that costs of that cleanup are not borne by the State or tax payers.

6615 holds certain people financially responsible for the release of hazardous waste.  They are responsible for the costs of investigating, responding to, and remediating the harm from a release of hazardous materials. The responsible entities under current law are the owner, operator, transporters, or arrangers.  An “arranger” is anyone, who by contract or other agreement arranged for the disposal or transport of the hazardous material.

Currently an owner, operator, transporter, or arranger are the entities that can be responsible for cleanup costs even if they had no knowledge of the hazardous nature of the material used or transported.  In these situations, the manufacturer of the substance escapes all liability to the State. Instead, the responsible entities must sue the manufacturer to contribute towards the cost of remediation, thereby requiring additional litigation.

Language proposed by the Agency of Natural Resources and the Administration seeks to eliminate this inequity.  It does so by holding a manufacturer to the same strict, joint, and several liability standard the rest of the responsible entities are held to when the manufacturer knew of the risk of the material and failed to adequately warn the user.

Imposing liability on the manufacturer makes sense in the same way allowing claims for medical monitoring makes sense. On one hand, there is the manufacturer of the hazardous waste who knew of the risks and failed to warn.  On the other, there is the owner, operator, transporter or arranger who knew nothing of the risk and managed the material as if it did not pose a risk. Clearly the manufacturer should be responsible for the costs of the remediation in that situation.

6615 was enacted to protect the public and ensure that the harm to the environment was mitigated as soon as practicable and that the entities that caused or contributed to the release are held liable for the costs.  S.37 seeks to bring further equity to 6615 by allowing the State to more effectively litigate against manufacturers who allowed hazardous materials into commerce without sufficiently notifying the public or others in the supply chain of the potential harm.

Section-by-Section

Sec. 3 amends 10 V.S.A. § 6615

  • Section 6615(a) clarifies the liability that entities have for abating a release of hazardous materials and for the costs of investigation, removal, and remedial actions incurred by the State that are necessary to protect the public health or the environment.
  • Section 6615(a)(5) adds a manufacturer of a commercially available hazardous material to the list of entities potentially liable for a release.
  • A manufacturer would be liable if: 1) it manufactured a hazardous material for commercial sale and knew or should have known the material presented a threat of harm to health or the environment; and 2) the material was released to the environment.
  • The bill would allow the State to bring the action. It does not create a strict liability cause of action in a private lawsuit for an injury to a person.
  • Subsection (d)(5) provides that a manufacturer would not be liable if it demonstrated that it provided adequate warning of the harm posed by the hazardous material that was known or should have been known at the time the material was manufactured.
  • Subsection (i) provides that a liable manufacturer cannot seek contribution (payment) from other potentially liable entities. If the manufacturer knew of the harm and sold it without adequate warning, the liability should not be on the innocent entity that purchased the product.

Section 4 – Application of Liability

  • A manufacturer’s liability under 6615 would apply retroactively to releases occurring before the act’s effective date.
  • Generally, liability for hazardous materials release applies retroactively for any release and all classes of liable persons.

Section 5 – Effective date – July 1, 2019

The Committee vote was 10-0-1.

Addressing Gun Violence

The legislature passed three laws last year to address gun violence. Act 92 enables law enforcement to temporarily remove firearms from the scene of a domestic violence incident. Act 97, a “red-flag law,” allows a judge to order someone who poses an extreme risk of harm to relinquish any dangerous weapons. Act 94 expands the federal requirement for background checks to include private sales, places restrictions on the sale of firearms to those under 21, limits the transfer and possession of high-capacity ammunition magazines, and bans the transfer and possession of bump-fire stocks.

Given the progress that the legislature made with these laws, I did not plan to press for additional firearm regulations during this biennium. That changed in December when Andrew Black committed suicide in Essex with a handgun that he had purchased four hours earlier. His parents urged legislators to pass a law to establish waiting periods for firearm purchases.

The Senate responded by passing S.169, which the House Judiciary Committee is now considering. The bill would establish a 24-hour waiting period for the purchase of handguns. It is not clear yet whether the House will pass the bill and send it to the Governor. I believe that it should, and I base my decision on four factors: the stories of Vermonters, expert testimony, data, and logic.

By stories, I mean the real-life accounts of family, friends, and neighbors lost to firearm violence. For example, Rob Black explained that his son had shown no signs of depression, and that a breakup with his girlfriend triggered the impulsive act of purchasing a handgun and, shortly after, using it to end his life. A waiting period could have interrupted this impulsive chain of events. Others testified to the traumatic effect of suicide on those who knew the victim and live with the doubt and questions as to what they could have done differently to help their friend or family member avoid that fate.

As for expert testimony, the Judiciary Committee heard from a specialist in pediatric critical care who is also a member of the Community Violence Prevention Task Force. She testified that many suicide attempts occur with little planning during a short-term crisis and that those who attempt suicide impulsively are more likely to choose a violent method. Firearms are the most lethal means of suicide, she explained, with over 90% of firearm suicide attempts resulting in death. Based on her experience and her understanding of the scientific studies, she concluded that restrictions on highly lethal means can lead to fewer suicide deaths. A waiting period for purchasing handguns is such a restriction.

A representative of the Vermont Network Against Domestic and Sexual Violence testified that firearms are the most frequently-used weapons in domestic homicides and that over half of all homicides in Vermont are domestic violence-related. She explained that firearms do not increase victim safety and are rarely used in self-defense by victims of domestic violence – for every one time a woman used a handgun to kill someone in self-defense, 83 women were murdered with a firearm by their partner. She concluded that S.169 should reduce the likelihood of these impulsive acts of violence.

Representatives of the Attorney General’s Office and of the Department of State’s Attorneys and Sheriffs testified, supporting the bill as a positive step for public safety. They also noted that having a waiting period for handgun purchases would help in combatting the drug trade. Currently, traffickers bring drugs into Vermont and exchange them for handguns, some that are purchased by Vermont residents near the time of the transaction. The waiting period would be an obstacle to such a deal.

These witnesses and others presented data from studies in support of their testimony. The American Journal of Public Health published research showing that states with waiting period laws had 51% fewer firearm suicides and a 27% lower overall suicide rate than states without such laws. When South Dakota repealed its 48-hour waiting period for handgun purchases in 2009, overall suicides the following year increased by 7.6%.

In the end, however, it is the logic of a waiting period that provides the strongest rationale for the passage of S.169. Lethal harm to oneself or another can occur when an impulsive act is combined with accessibility to a lethal weapon. A waiting period provides time to cool off, to let the heat of the moment pass, to distance impulsivity from the ability to acquire a handgun.

If this bill becomes law, it will not undermine individual rights to own guns. But it will save lives.

Slow Progress on Addressing Climate Change

I share the frustration of many who feel that the Vermont legislature is not moving fast or far enough in addressing climate change caused by the buildup of greenhouse gases. The budget and revenue bills and climate-related bills that have passed the House did not accomplish as much as I would have preferred.  I would have preferred to have seen more investment in a program to expand the prevalence of electric vehicles (EVs) in Vermont as well as the infrastructure to support them. I would have liked to see revenue raised for this investment through a carbon tax or a gas tax.  For example, H.277, which I sponsored, would raise $30 million toward these investments through a 5-cent gas tax.

I have supported other initiatives that, unfortunately, have not yet progressed this session. For example, I support increased incentives for installing solar panels through stronger net metering opportunities (H.423) and disincentives for the construction of fossil fuel infrastructure (H.175). I would like to see a stronger commitment to meeting the State’s greenhouse gas reduction goals (H.462). As the biennium progresses, I will continue to advocate for these bills, which I cosponsored, as well as bills sponsored by others that address climate change.

Not all the news on the climate front is bad, however. The legislature is making progress on several fronts. The House passed a 2-cent increase in the fuel tax (H.439) to raise an additional $4.5 million for weatherization assistance and furnace replacement for low-income homeowners and renters. With this increase, the budget includes a total of $18.2 million for this program. An additional $350,000 was budgeted in a workforce development bill (H.533) to train individuals in weatherization work.

The Transportation Committee has made progress in addressing the transportation sector’s contribution to greenhouse gas emissions in H.529 (passed by the House). It has recognized the importance of expanding Vermont’s public transit system, particularly in the rural parts of the State. The bill commissions two studies: one to evaluate methods to increase public transit ridership in Vermont and a second to conduct a technical analysis of commuter rail service utilizing self-propelled diesel rail cars.

H.529 also lays the groundwork for the expansion of EV ownership in Vermont. The bill establishes an EV incentive program, providing up to $5,000 (depending on household income level) toward the purchase or lease of a new or used EV. The budget passed by the House includes seed money of $1.5 million for the program, which could fund the incentive for 300 to 600 vehicles. H.529 also requires the Department of Public Service to produce a study of how to extend this incentive program to meet the levels of EV adoption set forth in Vermont’s Comprehensive Energy Plan, which suggests that annual sales of EV and plug-in hybrid EVs will need to reach 4,600 by 2025 in order for the State to reach its greenhouse gas emissions reduction goals. The budget also includes $300,000 for EV charging stations at Park & Ride locations.

Is this enough for Vermont to be able to say that it is doing its part to address climate change? No. Unfortunately, we are making incremental progress on an issue that requires expeditious action on a large scale. I recognize this and will, therefore, continue to advocate for alacrity and boldness, including identifying an adequate ongoing funding source for EV purchase and lease incentives and EV infrastructure, expansion of public transit options, incentives for the development of renewable energy, and disincentives for the burning of fossil fuels.

Eliminating the Statute of Limitations on Civil Actions for Childhood Sexual Assault

H.330, which I sponsored, passed out of the House on a voice vote this week.  It moves onto the Senate.  The following is my report on the bill that I presented to the House on Second Reading of the bill.

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Last week, this body passed out H.511, which related to statutes of limitation for certain criminal offenses.  H.330 addresses the statute of limitation for civil actions based on childhood sexual abuse.  Statutes of limitations in a civil context establish how much time someone has to bring a lawsuit against someone else.  They set the window during which a plaintiff can file a claim in court.

Victims of childhood sexual abuse may seek damages from their abuser in a civil action.  Sexual abuse of a child often leads to depression, PTSD, alcohol and opioid abuse, and many other health problems.  It is an Adverse Childhood Experience that can lead to years of negative impact on the victim.

However, victims of childhood sexual abuse often do not disclose the abuse until long after it occurred.  Victims are often ashamed of the abuse and keep it secret.  They may suffer severe psychological and emotional damage that may not manifest itself until adulthood.  Others develop an arsenal of defense mechanisms and may repress memory of the abuse for an extended period of time.

Most abusers are familiar to their victims.  The abuser may be someone the victim trusted or someone in a position of power.  These associations can lead victims not to disclose their victimization promptly, if at all.

In short, a victim may bury the abuse for years.  But they may eventually come forward.  The average age for disclosure of childhood sexual abuse is 52 years-old.  If there is a restrictive statute of limitations, delayed disclosure can prohibit a victim from seeking justice in a courtroom.

Under current Vermont law, a victim can bring a civil lawsuit for childhood sexual abuse within six years after the abuse.  Alternatively, the victim may bring a civil lawsuit within six years after the victim has “discovered” that an injury or condition was caused by the abuse.  This is called the discovery rule.  It extends the time within which a victim of childhood sexual abuse can bring a civil lawsuit against an abuser if the victim does not connect an injury with the abuse until long after the abuse occurred.

But there are problems with the discovery rule.  Even though it extends the time to sue, it still imposes an unnecessary barrier to a victim’s ability to seek justice.  Under the discovery rule, victims who file lawsuits would have to prove the point in time when they learned that their injuries were caused by previous abuse.  There is no rational reason to place this burden on victims.  The more important point in time is when victims are psychologically ready and able to pursue relief in a court of law.

One of the purposes of any statute of limitations is to protect a defendant’s interest in repose, or their safety from being sued.  But that purpose should not be controlling here.  Children who are sexually victimized will continue to suffer from the emotional and psychological consequences of that abuse for the rest of their lives. Protecting the perpetrator from fear of an impending lawsuit is unsupportable when his or her acts will have a lifelong, negative impact on the victimized child.  The public’s interest in providing an adult abuse survivor with adequate compensation far outweighs the defendant’s right to repose.

Accordingly, H.330 would eliminate the Statute of Limitations ANDthe discovery rule for childhood sexual abuse.  A victim would be able to sue his or her abuser at any time.  When they are ready to do so.  Section 522(a) provides that “A civil action brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse may be commenced at any time after the act alleged to have caused the injury or condition.”

Vermont would join nine other states that have eliminated the statute of limitations for such claims.

The Judiciary Committee did consider the concern that lifting the statute of limitations would lead to an increase in the filing of fraudulent claims or misremembered or misguided claims.

Section 522(b) of the bill and the rules of civil procedure address this concern.

Section 522(b) provides that complaints alleging childhood sexual abuse would be sealed by the court.  The complaint would remain sealed until the defendant files an answer or the Court denies a motion to dismiss filed by the defendant, meaning that it finds there may be some merit to the claim.  The public would not have access to the court record until after these initial proceedings.

Defendants are also protected by Rule 11 of the Rules of Civil Procedure. That rule provides that a Court may sanction someone who files a complaint or other pleading that is frivolous or is filed for any improper purpose, such as to harass.  So, someone who files a fraudulent claim of childhood sexual abuse may have to pay the costs and attorney fees of the defendant.

Requiring all lawsuits based on childhood sexual abuse to be filed under seal not only protects defendants from frivolous filings.  It also protects victims in the initial stages of litigation. Many potential plaintiffs are already discouraged from filing suits due to the highly emotional and disturbing issues involved.  As we heard from one witness, victims are reluctant to bring these cases.  Starting a court process is bound to be overwhelming for an individual bringing such a claim – the initial period where the case is under seal would provide a window of privacy to the plaintiff.

Section 522(c) of the bill is existing law.  It defines “childhood sexual abuse.”

Section 522(d) provides that the elimination of the statute of limitations for claims of childhood sexual abuse applies retroactively.  That means that if a victim’s claim is currently barred by the existing statute of limitations, after passage of H.330, the victim would be able to bring the claim.

A victim of childhood sexual abuse can also make a claim against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse if that entity failed to exercise reasonable care to prevent the abuse.  This bill eliminates the statute of limitations for that claim as well.

The Committee vote was 11-0-0

Statutes of limitation serve no rational purpose in civil cases filed by adult survivors of childhood sexual abuse. Their only effect is to deny these victims the opportunity to hold their abusers accountable.  Eliminating the statute of limitations to open the courthouse doors to adult survivors of childhood sexual abuse will shift the cost of abuse from the victims to the abusers, provide an additional deterrent to this conduct, and identify hidden child predators.