Senate passes controversial toxic pollution liability bill

Sen. Brian Campion, D-Bennington, one of the sponsors of S.197, in a committee meeting in 2015. File photo by Amy Ash Nixon/VTDigger
Senators narrowly approved a bill on Wednesday that substantially raises polluters’ liability for harming Vermonters, a proposal that has drawn intense lobbying on both sides.
Opponents say the legislation would assign a level of responsibility to polluters that exceeds what’s found in any other state, and could have serious and unforeseen consequences due to how it would increase legal uncertainty and insurance costs.
Environmentalists, however, praised the Senate’s vote in favor of the bill, saying it will deter polluters by forcing them to seriously consider the potential harm caused by their operations.
The bill passed on its third reading before the Senate with a 17 to 13 vote.
Sen. John Rodgers, D-Essex-Orleans, addressed the full Senate before the vote, telling his colleagues that he agreed with the intent of the bill but not the substance.
“I think one of the things that was discovered on the [Senate] floor in earlier debate is the possibility that this bill alone could make insurance more unaffordable than it already is, making a lot of businesses harder to operate in Vermont than they already are,” he said.
Sen. John Rodgers, D-Essex-Orleans. File photo by John Herrick/VTDigger
“I think we all want a clean environment — I certainly don’t want people dumping toxic chemicals into the environment — but I don’t think this bill is the best way to get there,” Rodgers said.
The bill’s supporters did not focus on how it would protect the environment, but instead framed it as creating a path to justice for Vermonters harmed by toxic pollution.
“Right now, harm from toxic contamination falls on Vermont families and taxpayers, and this bill makes it a little easier for Vermonters to protect themselves if they’ve been harmed,” said Lauren Hierl, executive director of Vermont Conservation Voters.
“The only businesses impacted are the ones using toxic chemicals in a way that they’re causing harm to their neighbors,” Hierl said. “If you are responsible using chemicals, or if you’re a company that doesn’t use toxic chemicals, you have nothing to worry about.”
The bill, S.197, assigns strict liability to the act of releasing harmful chemicals into the environment. That means polluters are liable for the effects of toxic chemicals they discharge, even if state permits allow the pollution, and even if polluters aren’t aware of the harms their activities may cause until after the fact.
The bill also assigns joint and several liability to the same type of pollution. These legal principles mean that if the bill becomes law and several companies all pollute with the same harmful chemical, each polluter can be held responsible for the harm that all the polluters caused.
Insurance and industry groups say the bill could significantly increase the cost of insurance for businesses and homeowners, a position reiterated by some of the senators during debate.
“The net effect that we do if we pass this particular bill is, we will increase insurance costs for every business in Vermont,” Sen. Randy Brock, R-Franklin, told his fellow lawmakers. “We will increase the cost of insurance for every homeowner in Vermont, by an amount that right now we don’t know.”
Sen. Randy Brock, R-Franklin.
Lawmakers heard testimony from an attorney representing Vermonters harmed by toxic pollution, but insurance companies were prevented by anti-trust laws from revealing in their own testimony the true scope of consequences the bill might represent, Brock said.
“We didn’t hear the other side of the story … but anyone who looks at this knows that someone’s going to have to pay for this, and that somebody, beginning right now if this passes, is all of us,” Brock said.
That’s been the case all along, Hierl said after the Senate passed the bill.
“The costs and harms from toxic chemicals already exist,” Hierl said, and they’re being paid by Vermont taxpayers and by individual Vermonters through the cost of medical bills from harms they suffer due to someone else’s pollution.
“Those costs are being paid by someone,” she said. “We believe the polluter should pay.”
William Driscoll, vice president of industry group Associated Industries of Vermont, said the bill’s definition of pollution, and language about who would be held responsible for it, was problematic.
“I think you could argue that this raises concerns about being held liable for releases that are not above health or environmental guidelines or standards that are set,” Driscoll said. “So that raises the question of, How much of a release is pollution? Is a teaspoon pollution, or is a truckload?”
The two Bennington senators who authored the bill, Democrats Dick Sears and Brian Campion, represent hundreds of residents whose wells were poisoned by toxic pollution released by Teflon-products manufacturer Chemfab over the span of decades.
Scientists test a well for the chemical PFOA. Bennington Banner photo
Purchased by French multinational chemical firm Saint-Gobain in 2002, Chemfab operated under state air-pollution permits. Multiple tests of Chemfab’s air pollution between 1980 and 2002 did not reveal the presence of minute amounts of perfluorooctanoic acid (PFOA), the carcinogenic toxicant that has since found its way into Bennington residents’ wells.
Sears said he’s “very pleased” that senators passed the bill. “I hope the House will take it up and pass it to the governor, and if he decides to veto it, he decides to veto it — but we think we’re protecting Vermonters and Vermonters’ pocketbooks,” he said.
Scott has indicated his opposition to the bill. In a memo to lawmakers asking them to adjust bills to remove any new fees, taxes or expenses, he said S.197 “Increases the cost of liability insurance on manufacturers to the point of making he cost and availability a potentially insurmountable barrier to doing business in Vermont.”
Sen. Ann Cummings, D-Washington, who Sears said had capitulated to special interests when she pulled the bill off the Senate floor last week to take further testimony on it in the Senate Committee on Finance that she chairs, voted in favor of S.197.
Read the story on VTDigger here: Senate passes controversial toxic pollution liability bill.