Environmental groups say Gov. Phil Scott exceeded his authority when he issued an executive order last month designed to speed the construction of new housing. The groups say they support his goal but that Scott violated the separation of powers when he ordered the rollback of environmental and energy rules passed by the legislature.
“At a time when Governor Scott is calling for more cooperation, this type of aggressive short cutting of the rule of law is something we are compelled to stand up against,” Lauren Hierl, executive director of the Vermont Natural Resources Council, said in a news release.
Scott said he issued the September 17 order because lawmakers had failed to help solve the housing crisis. The state is forecast to need 40,000 new homes by 2030 to meet demand.
The order sought to roll back energy-efficiency requirements for new homes, shrink the buffer zones around wetlands, reduce permit fees and make permitting appeals faster. The changes were supposed to go into effect immediately and remain in place through the end of 2027.
“This executive order sets a dangerous precedent by sidestepping the legislative process and undermining the very checks and balances that protect Vermonters,” said Elena Mihaly, vice president of CLF Vermont, part of the Conservation Law Foundation.
Instead of simplifying the rules and giving developers more certainty, Hierl argues, the executive order creates more uncertainty because the rules could face legal challenges.
One issue of particular concern to VNRC is the proposed reduction of protections for wetlands. The order proposes to no longer require permits for certain unmapped wetlands. It also proposes to reduce setbacks from the current 50 feet to 25 feet.
The groups argue that the Agency of Natural Resources can’t just ignore rules passed by lawmakers because the governor doesn’t like them.
“The legislature established a more protective buffer, and the Governor and agency staff are not free to disregard clear statutory language,” the groups say in their letter.
Natural Resources Secretary Julie Moore acknowledged at a renewable energy conference in South Burlington on Wednesday that the wetland rule changes “have the potential to be self-defeating” if they end up creating more risk for developers instead of less.
For that reason, her agency will not implement the wetland rules changes immediately but will instead start the formal process of changing them, she said.
Jon Groveman, director of policy at VNRC, said it was encouraging to see Moore commit to start the rulemaking process, but he doubted the agency would be able to justify the change.
The groups also argued that Scott does not have the authority to tell the Department of Public Service to roll back the 2024 energy efficiency codes to the codes in place in 2020. Kerrick Johnson, commissioner of the Department of Public Service, said his department was still reviewing the order and the groups’ challenge.
Other groups that expressed opposition to the order included Sierra Club-Vermont Chapter, Vermont Conservation Voters, Vermont Public Interest Research Group (VPIRG), and ACLU Vermont.
It’s not the first time Scott has been criticized for orders seen as ignoring the separation of powers.
Lawmakers have at times pushed back on Scott’s executive orders. In 2023, the leaders of the House and Senate objected to Scott’s changes to the “Vermont Strong” license plates program in response to the flooding. They expressed their “dismay” that Scott had “chosen to flout the separation of powers” by changing what lawmakers put in place in 2012.
In April, legislative leaders again took issue with an executive order that changed how the state’s emergency housing program operated. They argued that the changes “flagrantly and unconstitutionally intrude on the authority of the General Assembly.”
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