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BILL AS INTRODUCED 2007-2008

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S.44

Introduced by Senator Miller of Chittenden District, Senator Condos of Chittenden District, Senator Doyle of Washington District, Senator Illuzzi of Essex-Orleans District, Senator MacDonald of Orange District, Senator McCormack of Windsor District and Senator Snelling of Chittenden District

Referred to Committee on

Date:

Subject:  Conservation; Vermont common assets trust

Statement of purpose:  This bill proposes to make it clear that state policy is to protect certain common assets (such as air and water) for the benefit of present and future generations, and to establish a framework pursuant to which certain users of those common assets may be assessed fees that would be deposited into a common assets trust fund, which would be managed so as to protect those assets and serve the interests of present and future people of the state.  It proposes to provide that the common assets trust fund would be managed by a board of trustees, appointed according to the process established in the bill, in the interest of the beneficiaries.  It proposes to establish an advisory committee to recommend to the general assembly ways in which the framework could be implemented so as to serve the purposes expressed in the bill.

AN ACT RELATING TO ESTABLISHING A VERMONT COMMON ASSETS TRUST

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  10 V.S.A. chapter 166 is added to read:

Chapter 166.  VERMONT Common Assets Trust

§ 7161.  LEGISLATIVE FINDINGS

The general assembly finds:

(1)  The public trust doctrine, which dates back to Roman civil law, historically was codified in the Institutes of Justinian, which assured the citizens of Rome that “By the law of nature these things are common to all mankind – the air, running water, the sea, and consequently the shore of the sea.  No one, therefore is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations.”

(2)  As applied through English common law, which was incorporated into the common law of the United States and into the common law of the state of Vermont, the public trust doctrine provides that public trust lands, waters, and living resources in a state are held by the state in trust for the benefit of all the people, and establishes the right of the public to enjoy fully public trust lands, waters, and living resources for a wide variety of recognized public uses.

(3)  The Declaration of Independence built in part upon the public trust doctrine, when it declared:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

(4)  The list of “unalienable” Rights listed in the Declaration of Independence is not an exclusive list, as the terms of the Declaration show a clear intent that life, liberty, and the pursuit of happiness are “among” the unspecified, other inalienable rights that are endowed upon all humans by their Creator.

(5)  Other inalienable rights of all humans logically should include rights of access to common assets essential for life, such as the air we breathe and the water we drink.

(6)  Other common assets that have been historically protected by Roman law or by the Magna Carta include shorelines, wildlife, fisheries, and forests, and the accompanying common ability to hunt wild animals for food; to gather firewood, building materials, and medicinal herbs; and to graze livestock.

(7)  As society moves into modern times, the list of assets that should belong to the people in common because the assets were inherited or created together, and therefore should be preserved in the common interest has expanded now logically to include natural assets such as undisturbed habitats, entire ecosystems, biological diversity, waste absorption capacity, nutrient cycling, flood control, pollination, raw materials, fresh water replenishment systems, soil formation systems, and the global atmosphere; and also to include social assets such as the internet, our legal and political systems, universities, libraries, accounting procedures, science and technology, transportation infrastructure, the radio spectrum, and city parks.  In enacting the regional greenhouse gas initiative (RGGI), located at 30 V.S.A. § 255, which requires the development of a carbon cap and trade program, the state of Vermont already has determined that the ability to discharge carbon into the atmosphere is an ability that belongs to people in common, and that needs to be managed in the common interest.

(8)  In an illustration of the distinction between state property (which can be controlled and managed or mismanaged by the state) and common property (which belongs to the people), the doctrine of res communes provided that the king could not grant exclusive rights of access to a common resource.

(9)  The nature of a common asset is that it may be used by the public, but, as in the case of the public trust doctrine, an individual should be limited to uses that do not deplete the capital of the asset, but that are consistent with the common asset being available for the enjoyment of future generations.

(10)  It is appropriate that the concept of the trust be explicitly expanded to address more than the navigable waters of the state, so that a legal institution is created whose managers, the trustees, have clear legal responsibilities to protect the common resources, to assure that the capital assets are not depleted, and to manage any assets that may arise from the common resources on behalf of the beneficiaries in a manner that includes strict fiduciary responsibilities, transparency, and accountability.  This is particularly important in regard to those beneficiaries who, as members of future generations or ecosystems or nonhuman species, are unable at present to represent their own substantial interests.

(11)  It is appropriate to review those common assets that have a value in the market and which are appropriate to buy and sell, as part of a process to  determine anew whether classes of users of common assets should be subject to clear limits and assessed fees that would be managed by the trustees in a manner that preserves the common assets and serves the interests of the beneficiaries.

(12)  It is appropriate to consider establishing management systems pursuant to which sources that pollute the common assets are subject to clear limits, and to consider systems in which any ability to pollute the common assets is auctioned, or allocated in equal shares to each citizen of the state, who may then retain the rights or sell them to a willing buyer.

(13)  It is appropriate for the state to establish a common assets trust fund which may be used to receive fees which may be derived from profits flowing from the use of common assets, and to create an appropriate management framework for that trust fund.

§ 7162.  VERMONT COMMON ASSETS TRUST CORPORATION

(a)  There is established the Vermont common assets trust corporation, a public corporation and government instrumentality managed by a board of trustees.  The purpose of the corporation is to manage and invest the assets of the fund in accordance with this chapter and perform other functions established by law.  As trustees, the members have fiduciary obligations:  first, to future generations; second, to all living persons within the state, equally.

(b)  The board of trustees of the Vermont common assets trust corporation consists of four members appointed by the governor, one appointed by the speaker of the house, and one appointed by the president pro tempore of the senate.  Two of the members appointed by the governor must be heads of agencies of state government, one of whom shall be the commissioner of taxes.  The other two members appointed by the governor, the member appointed by the speaker of the house, and the member appointed by the president pro tempore of the senate shall be appointed from the public and may not hold any other state or federal office, position, or employment, either elective or appointive, except as a member of the armed forces of either the United States or of this state.

(c)  The four public members of the board must have recognized competence and wide experience in finance, investments, or other business management-related fields.  All members shall be free of substantial conflicts of interest and shall submit the ethics questionnaire established by executive order no. 3-45.

(d)  The board shall annually elect a chair from among its members.

(e)  The public members of the board shall be appointed for terms of four years, and they may be reappointed.  The terms of the public members shall be staggered so that no more than one term of a public member expires each year.

(f)  Notwithstanding the provisions of 3 V.S.A. chapter 41, the governor may remove a public member of the board from office only for cause.  A removal by the governor must be in writing and must state the reason for the removal.  A member who is removed by the governor may not participate in board business and may not be counted for purposes of establishing a quorum after the member receives written notice of removal from the governor.

(g)  A vacancy on the board shall be promptly filled by appointment by the original appointing authority.  An appointee to a vacancy shall hold office for the balance of the term for which the appointee's predecessor on the board was appointed.

(h)  A vacancy on the board does not impair the authority of a quorum of the board to exercise all the powers and perform all the duties of the board.

(i)  Public members of the board receive an honorarium of $400.00 for each day spent at a meeting of the board or at a meeting of a subcommittee of the board or at a public meeting as a representative of the board.  Members of the board are entitled to per diem and travel allowances as provided by 32 V.S.A. § 1010 for members of state boards and commissions.

(j)  The board may employ and determine the salary of an executive director.  The executive director may, with the approval of the board, select and employ additional staff as necessary.  An employee of the corporation, including the executive director, may not be a member of the board.

(k)  The board shall have all the powers necessary and convenient to carry out and effectuate the purposes and provisions of this chapter, including without limitation those general powers provided to a business corporation by section 1852 of Title 11.

(l)  By September 30 of each year, the board shall publish a report of the fund for distribution to the governor and the public.  The board shall notify the general assembly that the report is available.  The report shall be written in easily understandable language.  The report must include financial statements audited by independent outside auditors, a statement of the amount of money received by the fund from each investment during the period covered, a statement of investments of the fund, including an appraisal at market value, a description of fund investment activity during the period covered by the report, and any other information the board believes would be of interest to the governor, the general assembly, and the public.  The annual income statement and balance sheet of the fund shall be published in at least one newspaper in each judicial district. The income statement and balance sheet for the two fiscal years preceding shall be included in that pamphlet.

(m)   Information in the possession of the corporation is a public record, except that information that discloses the particulars of the business or affairs of a private enterprise or investor is confidential and is not a public record. Confidential information may be disclosed only for the purposes of an official law enforcement investigation or when its production is required in a court proceeding.  These restrictions do not prohibit the publication of statistics presented in a manner that prevents the identification of particular reports, items, persons, or enterprises.  The board shall take measures appropriate to assure a high degree of transparency in whatever it does, and shall post information about its actions on the internet in a timely fashion.

§ 7163.  VERMONT COMMON ASSETS TRUST FUND

(a)  There is hereby created in the state treasury a fund to be known as the Vermont common assets trust fund, to be expended by the board of trustees of the common assets trust fund.  The fund shall consist of appropriations of the general assembly and other sources of revenue established by law.  All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund.  Interest earned by the fund shall be deposited into the fund.  Disbursements from the fund shall be made by the state treasurer on warrants drawn by the commissioner of finance and management.

(b)  The board of trustees may authorize disbursements from the fund for:

(1)  enhancing the common assets;

(2)  activities that provide direct benefits to all citizens of the state, which may include measures relating to health care, Social Security enhancements, startup grants for young people upon reaching the age of 18 years, and public libraries and education.  However, a minimum of 25 percent of disbursements of the fund shall be reserved for and paid out as pro rata dividends for each citizen of the state;

(3)  other purposes authorized by law; and

(4)  otherwise as the board determines to be in the interests of the beneficiaries.

§ 7164.  VERMONT COMMON ASSETS TRUST ADVISORY COMMITTEE

(a)  There is created a Vermont common assets trust advisory committee.  The committee shall consist of two members of the senate and one representative of the general public appointed by the committee on committees, two members of the house and one representative of the general public appointed by the speaker of the house, and three persons appointed by the governor.

(b)  The advisory committee shall elect a chair, vice chair, and clerk and shall adopt rules of procedure.  The chair shall rotate biennially between the house and the senate members.  The committee may meet during a session of the general assembly at the call of the chair or a majority of the members of the committee.  The committee may meet during adjournment subject to approval of the speaker of the house and the president pro tempore of the senate.  A majority of the membership shall constitute a quorum.

(c)  The staff of the legislative council shall provide professional and clerical assistance to the committee.

(d)  For attendance at a meeting when the general assembly is not in session, members of the committee shall be entitled to the same per diem compensation and reimbursement for necessary expenses as provided members of standing committees under 2 V.S.A. § 406.

(e)  The committee shall hold public meetings, invite input from the general public, and work with interested persons in a process to:

(1)  Carry on a continuing review of the status of the common assets in the state of Vermont.

(2)  Consider:

(A)  the advantages and disadvantages of establishing caps on the use of a common asset;

(B)  establishing or increasing fees for polluting or other nonbeneficial uses of common assets while, possibly, at the same time decreasing reliance on revenues from payroll or other taxes; and

(C)  redirecting existing fees for the use of common assets into the common assets trust fund;

(D)  endowing citizens with enforceable rights to require that the common assets be managed for the benefit of future generations, which includes rights to experience natural ecosystems and to live among healthy, diverse non-human species.

(3)  Identify harmful continuing subsidies that should be repealed or otherwise revised, and barriers to the state’s ability to adequately protect the common assets under the status quo.

(4)  Recommend ways that income from the trust fund may best be allocated to benefit all of the citizens in the state, possibly to include auctioning a portion of the available capacity of a common asset or allocating to each citizen ownership of an equal portion of that capacity, or both.

(5)  Develop appropriate recommendations, including draft legislation, and at least annually report to the general assembly with the results of its deliberations. 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us