Editor’s note: This commentary is by David Snedeker, who is the executive director of the Northeastern Vermont Development Association.
[V]ermont has earned a reputation of being a national leader on many issues – from banning slavery to being the first state to legislatively pass marriage equality. Thus, Vermonters have many reasons to be proud of our groundbreaking efforts. However, it is not always wise to be first, and in some cases there are reasons why other states have not done things that we are considering. These are reasons we should explore and pay attention to. In Vermont, bill S.197, known as the “Strict Liability” bill, is currently being considered by the Legislature.
My understanding of “strict liability” is that there is an “Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault.” If this is accurate, this bill would make companies legally liable in every case for any harm caused by the release of any toxic substance regardless of whether the release was unintentional or even lawfully permitted. This is not a policy that Vermont should be eager to lead on. If passed, this bill has the potential to negatively impact thousands of Vermont businesses and have a chilling effect on our fragile economy. Making Vermont the first and only state in the U.S. to pass such a strict liability law would introduce a tremendous amount of uncertainty into the insurance marketplace and may cause immense harm to businesses of all sizes.
As the executive director of the Northeastern Vermont Development Association, the Northeast Kingdom region’s planning and economic development organization, I work daily, in partnership with many others, to sustain and grow our existing businesses and attract new companies to our region. This is always a challenging, but rewarding, task in a competitive environment. However, I have no doubt, that if passed, this bill would make these efforts even more difficult. Our elected officials should be making it easier for our business support network to grow and attract businesses that create jobs — not to make it more difficult. We can also still protect workers and the communities that benefit from employment businesses provide.
The strict liability bill would seemingly deprive Vermont companies of the right to defend themselves as even when a company acts reasonably and in a non-negligent manner, it would still be held legally responsible. Against this backdrop, insurance companies may have to make decisions based on anticipated as well as actual losses. Additionally, this bill would serve as a tremendous disincentive to companies that undertake important economic activity, particularly in areas of new and emerging technology.
As written, the strict liability bill also creates a private right of action for all exposed individuals, regardless of the level of exposure, to sue to recover costs of medical monitoring. This means that even if a person has shown absolutely no signs of harm by the company their medical monitoring costs will be covered by the business. The U.S. Supreme Court has rejected medical monitoring absent a physical injury and perhaps for good reason. A flood of less severe cases would drain the pool of resources available for claims by plaintiffs with serious, present injuries and adversely affect the allocation of scarce medical resources.
Vermont has earned its reputation for being a national leader in some good ways. Becoming the first state in the U.S. to pass a strict liability bill would, unfortunately, also solidify a Vermont reputation that many people have been trying to shed – that Vermont is a state that is hostile and unfriendly to growth and business. I urge the Legislature to rethink their approach to this bill and develop legislation that protects Vermonters from toxic chemicals without punishing law abiding businesses and stifling current and future growth.
