Legislating by Lawsuit: Vermont’s Unstable Approach to Governance

In recent years, Vermont’s legislature has passed several laws that appear to invite court intervention as a primary means of enforcement, shifting the burden of responsibility away from lawmakers and onto the judiciary. This pattern of legislative behavior, which encourages lawsuits as a means of holding the state or businesses accountable, raises significant questions about the effectiveness of governance and the consequences for Vermont’s already overburdened court system. Even more concerning is the unpredictable business environment this approach creates, leading to economic instability for state stakeholders and taxpayers alike.

From the passage of Act 60 (school funding) and the Global Warming Solutions Act (GWSA) to a recent data privacy bill, the Vermont legislature seems increasingly comfortable crafting laws that require court action to enforce. Whether it’s creating the framework for individuals to sue the state or encouraging lawsuits against businesses, the legislature appears to be hiding behind the courts to achieve politically sensitive objectives. This approach not only burdens Vermont’s judicial system but also shifts political accountability away from legislators who may be unwilling to make difficult decisions.

Act 60: The Start of the Trend

One of the earliest and most notable examples of Vermont’s reliance on the courts is Act 60, the state’s controversial school funding law. Act 60 was passed in response to the 1997 Vermont Supreme Court ruling in Brigham v. State, which found that the state’s existing education funding system violated the Vermont Constitution’s guarantee of equal access to education.

Rather than taking a hard, direct approach to reforming the education system and balancing funding across districts, the legislature created a framework where ongoing legal challenges became almost inevitable. By requiring equalized funding across school districts, Act 60 set up a system where wealthier towns found themselves heavily taxed to support less affluent areas. This naturally led to tensions and legal disputes over what constitutes “equal access” and what level of funding is required to achieve that standard.

The legislature, in this case, essentially allowed the courts to determine the limits and contours of equitable education funding, rather than resolving the issue through direct legislative action. Whenever disputes arose about the fairness or functionality of Act 60, they were kicked back to the judiciary. The courts became the enforcers, responsible for interpreting how the law should be applied in specific cases, leaving legislators with a convenient escape from the political fallout of contentious decisions.

The Global Warming Solutions Act: Legislating Climate Policy Through Lawsuits

Another prime example of Vermont’s legislature outsourcing responsibility to the courts is the Global Warming Solutions Act (GWSA), passed in 2020. This law is designed to hold the state accountable for meeting strict carbon reduction goals in line with Vermont’s ambitious climate policy. On its surface, the GWSA presents itself as a bold step toward environmental responsibility, with detailed benchmarks for cutting greenhouse gas emissions.

However, rather than creating robust mechanisms for ensuring compliance through government oversight or enforcement, the GWSA includes a provision allowing citizens, activist groups, and any other entities, to sue the state if it fails to meet its emissions targets. In essence, the legislature placed the responsibility for enforcing this complex and costly law in the hands of litigants and the court system.

This litigation-first approach creates economic uncertainty for Vermont businesses and taxpayers. Instead of clear and predictable regulations, companies are left to navigate a minefield of potential lawsuits. Stakeholders in the state—whether small businesses or individual residents—cannot make solid long-term financial plans when they are unsure whether they might be dragged into court over vaguely defined compliance failures. When laws are enforced through litigation, there is no predictability, which is the bedrock of a stable economy.

The inclusion of a private right of action shifts the burden of enforcement away from lawmakers, who might otherwise be held accountable for implementing such drastic policies. Should Vermont fail to meet its climate goals, the lawsuits will fall on the courts to handle, not the politicians who passed the legislation. The legislature has insulated itself from the consequences of failing to deliver on ambitious promises by empowering individuals and non-profits to litigate the issue instead of creating a clear, actionable plan.

This tactic allows lawmakers to appear proactive on climate issues without directly confronting the economic costs or political backlash that might come from stringent enforcement of emissions reductions. If the courts are forced to mandate compliance, legislators can claim their hands are tied—yet they were the ones who originally set the stage for judicial involvement.

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Data Privacy Law: Another Layer of Lawsuits

A more recent example of the Vermont legislature’s penchant for inviting lawsuits comes from the comprehensive data privacy bill passed in May 2024, which was ultimately vetoed by Governor Phil Scott. The bill would have allowed consumers to sue companies not only for data breaches but for broader violations of data privacy rights, such as the improper collection or sale of sensitive information.

While many states have enacted data privacy laws allowing consumers to sue after data breaches, Vermont’s law went a step further by including provisions for litigation based on broader misuses of data. Had the law been signed, it would have opened the floodgates to lawsuits against companies that process more than 100,000 Vermont consumer records annually, even for relatively minor infractions.

Once again, instead of creating solid, predictable laws that businesses can follow with certainty, the Vermont legislature embraced the lawsuit model. This creates an unstable and unpredictable business environment, where companies are left guessing about what might trigger a lawsuit. Such an environment makes it difficult for businesses to invest and grow in the state. In turn, this economic instability trickles down to consumers and employees, who will inevitably face the consequences through job losses, reduced services, or increased costs.

This legislative strategy raises the same concerns as the GWSA: the lawmakers can champion themselves as defenders of consumer privacy without having to directly confront the challenges of enforcement. If the court system becomes bogged down with lawsuits, or if the law proves difficult to implement, the blame can be shifted onto the judiciary.

The Consequences: An Overburdened and Unpredictable System

The problem with this recurring pattern is twofold: Vermont’s courts are already overburdened, and the state’s businesses and taxpayers are left navigating an unpredictable regulatory landscape. The state’s judiciary has long struggled with case backlogs, delays, and underfunding, and the legislature’s increasing reliance on the courts to enforce complex, high-stakes policies only adds to the strain. Each new law that invites litigation shifts more of the responsibility for resolving political and social issues onto the court system, which is ill-equipped to handle such a load.

Moreover, this tactic creates an unstable economic foundation. When companies and individuals cannot be sure of the legal landscape, it makes long-term planning nearly impossible. Businesses need clear, consistent rules to operate efficiently, invest in the community, and grow. Laws that invite lawsuits instead of offering clear guidelines lead to hesitation, reduced investment, and ultimately a slower economy.

Conclusion: Time for Accountability and Stability

Vermont’s legislature has developed a pattern of passing laws that rely on litigation rather than direct oversight and enforcement. Whether through Act 60, the GWSA, or the recent data privacy bill, lawmakers are increasingly comfortable shifting the burden of responsibility to the courts, hiding behind the judiciary when tough decisions need to be made. This approach not only overburdens the state’s court system but also creates an unpredictable and unstable business environment, which stifles economic growth and harms taxpayers.

As Vermont continues to grapple with complex issues like education funding, climate change, and data privacy, it’s time for the legislature to stop hiding behind the courts and start taking responsibility for the laws it passes. More predictable laws, clear regulatory frameworks, and direct legislative accountability will not only ease the burden on the courts but also provide a stable economic foundation for Vermont’s businesses and residents.

Dave Soulia | FYIVT

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