Friend,
Welcome to the fourth and final installment in my veto update newsletter series! So far, we’ve covered the neonicotinoid ban and the renewable energy standard; property taxes and education funding; and overdose prevention centers and restorative justice expansion.
The final two bills that will likely be up for a veto override vote next week are H.687, An act relating to community resilience and biodiversity protection through land use (AKA the Act 250 reform bill), and H.121, An act relating to enhancing consumer privacy and the age-appropriate design code.
Act 250 Reform
H.687 is undoubtedly one of the most important bills passed during this year’s legislative session. Our housing crisis is one of the biggest issues we face in Vermont. This bill is the most significant reform of our land use and development law, Act 250, since its passage in 1970(you can read more about the history of Act 250 here.) H.687 is a grand compromise that largely is based on recommendations from a study led by Gov. Scotts administration.
Act 250 is one of the most consequential laws that has been made in Vermont. It has protected the natural beauty and environment of our state from large scale and unfettered hasty overdevelopment. However, it has also led to some development restrictions that reduced the ability to build enough housing for our growing population. H.687 removes some barriers for denser and larger development in town and village centers, mainly where water and sewer infrastructure already exist, while creating a framework to strengthen protections in ecologically important areas. For the rest of the state that does not fall into these categories, the Act 250 rules remain largely the same with the addition of an important road rule provision to prevent forest fragmentation.
It’s important to note that this bill came from the collaboration and compromise from both environmental groups and developers, two groups that do not often agree. It will help us build affordable housing and create denser downtown areas while continuing to reduce our impacts on our broader landscape. It will reduce regulatory burdens in village, town and city centers and help us build smartly instead of succumbing to sprawling overdevelopment.
Why was this bill vetoed?
It is not a surprise that this bill was vetoed. Governor Scott has voiced his opposition to it for months despite it’s widespread support from a broad array of stakeholders, something he acknowledges in the letter he sent explaining his veto. So why has this bill been met with his objection? The short answer to that question is that he does not believe that it goes far enough.
In the letter mentioned and linked above, he outlined a list of changes that he suggests adding to the legislation to “achieve more balance”. While it is good that he has given a counter proposal rather than vetoing the bill with no plan, it is important to note that many of the changes that he proposes were already considered, and rejected, by the legislature because the general public wants both more housing, but also balance in the wholesale reforms that will impact Vermonters for generations to come.
The Governor has also claimed this bill is more of a conservation bill that expands Act 250 regulation, than reforms it. While some critical resource areas will likely see expanded protections based off of the framework laid out in the bill, the majority of the state will likely see minimal restrictive changes. This bill is primarily aimed at smart growth, as opposed to unfettered development. Meanwhile it will expand significant development possibilities in areas with water and/or sewer. As mentioned before, this bill is a monumental compromise, exactly what the Governor has spoken about in political terms throughout this session.
If the legislature is not able to override this bill or come up with a new bill that reaches consensus, then we will be left with no changes to Act 250 and worse off in our ability to build more affordable housing in the coming years. For Vermonters, this is a dangerous moment to risk some progress towards more housing availability vs. no progress at all.
Data Privacy
The final vetoed bill to talk about is H.121, a consumer protection and data privacy bill. This bill has two major components. First, it limits the amount of personal data companies are allowed to collect on consumers and establishes a private right of action for individuals to sue companies if harm comes from data collection and selling practices. Second, it requires online products that are reasonably likely to be used by children under 18 to be age-appropriate, institute privacy by design and default, and be designed with kids’ best interests in mind.
Last year, Vermont, alongside 40 other states, sued Meta for intentionally designing addictive and harmful products. The suit alleges that these addictive products have fueled the youth mental health crisis that many of us are familiar with. The latter part of the bill was crafted to help address these extractive practices and protect our children. It is modeled after similar legislation in the UK that has been in effect for the past two years. For an overview of some of the specifics of how this bill works, here is a fact sheet with more information.
The other part of the bill would establish ground rules for Vermonters to be able to request that their data not be tracked by data brokers and create a private right of action against companies who violate this privacy. This legislation is modeled after similar rules that California and Connecticut have put in place.
Why was this bill vetoed?
In a letter explaining his veto, the Governor pointed to a few areas of objection (which are addressed below.) These include:
-
The private right of action that would, according to the Governor, “make Vermont a national outlier, and more hostile than any other state to many businesses and non-profits".
-
The Kids Code provision- similar legislation in California is currently being reviewed by an appellate court, and the Governor proposes that we wait to see what the decision for that case is before we move ahead with this legislation.
-
The potential expensive new burdens and competitive disadvantages for small and mid-sized Vermont businesses.
Shortly after the veto was announced, Attorney General Charity Clark issued a statement pushing back against the Governor’s assertions about the impacts of the bill. I would encourage those who are passionate about this subject to read both the Governor’s veto letter and the Attorney General’s response statement- it's an important and fascinating discussion that is difficult to boil down into a few bullet points. To summarize:
-
Private right of action: according to the AG’s statement, the allegations that the private right of action outlined in this bill would make Vermont more hostile than any other states to many businesses and non-profits is simply false. The bill that passed allows individuals to have a right to sue “only for actual damages suffered and – significantly – only where a violation involves sensitive data, such as a Social Security number or biometric data, like your fingerprint or face.” Additionally, small and mid-sized businesses are protected from this right of action, thus already protecting the businesses that the Governor claims his veto is meant to protect.
-
Age-appropriate design code: H.121 pushes the effective date of this portion of the bill to July 1, 2025 to allow for clarity from the courts who are looking into these issues now. Additionally, though our legislation is modeled after the law in California that is currently under appellate court review, it is not the same. The legislature incorporated changes to address the California court’s initial ruling.
-
Small businesses: As mentioned above, this bill removes small and mid-sized businesses from its’ scope and only applies to businesses holding the data of 25,000 consumers or more.
It is also worth noting that this bill passed the House on a vote of 139-0. The Senate did not request a roll call vote, but I recall wide support for this bill in the Senate as well.
-----
The Veto session begins tomorrow at 10 am, so now is the time to contact your legislators and add your voice to the conversation.
Lt. Governor David Zuckerman