Did Vermont Governor Phil Scott's Executive Order 06-25 (which addresses housing construction by relaxing wetland permits and letting builders use older energy standards) effectively repeal or modify the wetlands and energy statutes the legislature enacted?
Plain-English summary
On October 1, 2025, Senate President Pro Tem Philip Baruth and Speaker of the House Jill Krowinski asked AG Charity Clark whether Executive Order 06-25, "Promoting Housing Construction and Rehabilitation," issued September 17, 2025, effectively repealed or modified state statutes on wetlands and building energy standards. The Order took effect immediately and directs agencies to (1) reduce wetlands permitting and buffer zones, (2) let builders choose between 2020 and 2024 building energy standards, and other housing-promotion actions.
The AG concluded the Order is lawful in part and unlawful in part:
- Lawful: directing agencies to begin rulemaking on wetlands and energy standards. The Governor can tell agencies to start the APA rulemaking process. The Agency of Natural Resources has already complied with the wetlands directive.
- Unlawful: trying to immediately change wetlands law without rulemaking. The Governor cannot unilaterally exempt categories of wetlands from permitting (§ 913 says "Except for allowed uses adopted by the Department by rule, permits required") or halve the 50-foot statutory buffer zone (§ 902(9) and § 914 require a Secretary's determination case-by-case, not a categorical reduction).
- Unlawful: letting builders choose between 2020 and 2024 energy standards. Section 51(c)(2) (residential) and § 53(c)(2) (commercial) say "any person commencing residential construction shall comply with the most recent version" of the rules. Once new rules take effect, only the new rules apply. The Order's "option" language conflicts with this requirement.
The AG warns that anyone relying on the Order as a source of new law "does so at the risk of being non-compliant with binding, statutory law."
What this means for you
If you are a Vermont housing developer or builder
Be cautious about relying on the Executive Order to skip wetlands permits or to use the 2020 building energy standards instead of the 2024 standards. The AG's opinion is that:
- Wetlands permits are still required under § 913 unless an "allowed use" is adopted by Department rule. The Order does not create allowed uses by itself.
- Buffer zones around Class II wetlands remain at 50 feet under § 902(9), absent a Secretary's case-by-case determination. They cannot be halved categorically.
- Building energy standards are the most recent version (2024 RBES/CBES), per §§ 51(c)(2) and 53(c)(2). The 2020 option in the Order conflicts with these statutes.
If you build under the Order's relaxed standards, you risk:
- Wetlands enforcement action.
- Inability to obtain Act 250 permits (§ 6086(a)(9)(F) requires evidence of compliance with current building energy standards).
- Civil suits from neighbors (§§ 51(g) and 53(e) authorize suits against builders making non-compliant certifications).
The safer path is to comply with statutory requirements while waiting for any rule revisions to be properly adopted.
If you are an Agency of Natural Resources or Department of Public Service rulemaker
The Order's direction to begin rulemaking is lawful. Starting rulemaking is permissible. ANR has already opened a rulemaking proceeding on wetlands. But:
- Approach the rulemaking with an open mind. In re Highlands Master Plan (N.J. 2011) confirms that an executive order may not direct an agency to contravene statute. The agency can consider the Order's policy direction but cannot pre-decide the rule.
- Do not exceed your statutory authority. The agency cannot use rulemaking to enlarge powers the legislature did not grant (In re Agency of Admin., 1982).
- Document the rulemaking record carefully. Any rule adopted needs to be defensible against legal challenge.
If you are a Vermont legislator or staff
The opinion is essentially a request for legislative engagement. The Order is trying to address a real housing shortage, but it is doing so by working around statutes the legislature passed. If you support the Order's substantive direction, the path is to amend the underlying statutes (wetlands chapter, energy standards in chapter 30 of Title 51 or 53). If you oppose the direction, the AG opinion is your tool: cite it to remind agencies they cannot implement the Order's substantive policy changes without rulemaking, and that rulemaking is constrained by the legislature's statutes.
If you are a wetlands neighbor or environmental advocate
The Order does not change your rights under existing statutes. Wetlands permits are still required for Class II wetlands (mapped or unmapped), absent rulemaking that creates a new "allowed use" exemption. Buffer zones remain at 50 feet absent a case-by-case Secretary determination. If a development project starts work without a permit relying on the Order, you have grounds to file a complaint with the Department or to seek injunctive relief.
If you are an Act 250 practitioner
The Order does not change Act 250's requirements. Section 6086(a)(9)(F) still requires applicants to provide evidence of compliance with the building energy standards "under 30 V.S.A. § 51 or 53." The "applicable" standards are the most recent ones (2024). Applicants relying on 2020 standards in their Act 250 filings risk denial.
Common questions
Q: Can the Governor change a statute by executive order?
A: No. Executive orders cannot make new laws or suspend existing ones. They can only "articulate how existing law is to be implemented" (1981 AG Op.; 1976 AG Op.). The Governor's power is to ensure laws are "faithfully executed" (Vt. Const. ch. II § 20), not to override them.
Q: What can the Governor do under an executive order?
A: Direct agencies, set policy priorities, and instruct agencies to begin rulemaking. The agency must then go through the APA process, which includes notice, comment, and consideration of statutory limits.
Q: Why are wetlands permits required even for unmapped wetlands?
A: Section 913(a) prohibits unpermitted activity in significant wetlands "[e]xcept for allowed uses adopted by the Department by rule." Section 902(7) defines a Class II wetland to include wetlands the Secretary determines need protection. So unmapped wetlands can still be Class II if the Secretary makes the determination, and they require permits.
Q: Can the Secretary categorically exempt unmapped wetlands?
A: The opinion says no. The Secretary has case-by-case discretion under § 914 to make individual wetland classifications. But a categorical exemption changes the regulatory scheme and requires rulemaking under § 913.
Q: Are the 2024 building energy standards still in effect?
A: Yes. They were adopted via APA rulemaking and took effect July 1, 2024. Until they are revised through rulemaking, they are the only standards with legal effect (per the AG's opinion).
Q: What happens if a builder relies on the Order and the Order is later challenged?
A: The builder may face enforcement, neighbor lawsuits, and Act 250 problems. The AG warns explicitly: "Reliance on the Order as a source of new law carries legal risk and may delay desired residential and commercial development outcomes."
Background and statutory framework
The separation of powers framework. Vt. Const. ch. II §§ 2, 3, 4, 5 establish a separation of powers. The legislature has "Supreme Legislative power"; the Governor has "Supreme Executive power" and "is also to take care that the laws be faithfully executed." Branches must remain "separate and distinct." Overlap is permissible (In re D.L., 1995; Hunter v. State, 2004), but no branch can "usurp" another's powers.
The wetlands framework. Section 913(a) of Title 10 requires permits for activities in significant wetlands "[e]xcept for allowed uses adopted by the Department by rule." Section 902(11) defines significant wetlands to include Class II wetlands. Section 902(7) defines Class II to include wetlands identified on inventory maps OR wetlands the Secretary determines need protection. Section 902(9) sets the buffer zone at "at least 50 feet . . . unless the Secretary determines otherwise under section 914." Section 914(a)-(b) gives the Secretary case-by-case discretion to classify wetlands and to determine buffer widths, but the discretion is exercised in particular determinations, not categorically.
The building energy framework. Section 51 of Title 30 governs the Residential Building Energy Standards (RBES). Section 53 governs the Commercial Building Energy Standards (CBES). Both require the Public Service Commissioner to "amend and update" the standards via rulemaking. Critically, both subsections (c)(2) say "any person commencing residential [or commercial] construction shall comply with the most recent version" of the rules. The most recent rules took effect July 1, 2024.
The 2024 amendments. Act 151 of 2024 made rule updates discretionary instead of mandatory. Act 47 of 2023 required regional plans to include a "housing element" with code-compliant homes affordable at 30% of household income. The AG concludes these statutory changes did not affect the requirement to comply with the most recent version of the rules.
Limits of executive orders. In re Handy (1984) and Trybulski (1941) establish a presumption of validity for executive orders. Mills v. Hartford Healthcare (Conn. 2023) collects cases applying statutory interpretation principles to executive orders. In re Highlands Master Plan (N.J. 2011) confirms an executive order cannot direct an agency to contravene statute. Multiple states have struck down portions of executive orders that "in essence, create law" (Markham v. Wolf, Pa. 2018).
Citations and references
Statutes and Constitution:
- 10 V.S.A. §§ 902, 905b, 913, 914, 6086(a)(9)(F)
- 30 V.S.A. §§ 51, 53
- 3 V.S.A. §§ 800(6), 848(d)(1)
- Vt. Const. ch. II §§ 2, 3, 4, 5, 20
- Acts 47, 89, 151, 173, 181 (2023-24)
Cases:
- In re D.L., 164 Vt. 223 (1995)
- Hunter v. State, 2004 VT 108
- In re Highlands Master Plan, 25 A.3d 1172 (N.J. Super. App. Div. 2011)
- In re Agency of Admin. State Bldgs. Div., 141 Vt. 68 (1982)
- Markham v. Wolf, 190 A.3d 1175 (Pa. 2018)
- Mills v. Hartford Healthcare Corp., 298 A.3d 605 (Conn. 2023)
Source
- Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
- Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/2025-11-20%20AG%20Op.%202025-01.pdf
Original opinion text
CHARITY R. CLARK TEL: (802) 828-3171
ATTORNEY GENERAL
www.ago.vermont.gov
STATE OF VERMONT
OFFICE OF THE ATTORNEY GENERAL
109 STATE STREET
MONTPELIER, VT
05609-1001
Formal Opinion No. 2025-01
November 20, 2025
Hon. Philip Baruth
President Pro Tem of the Senate
Hon. Jill Krowinski
Speaker of the House of Representatives
Re: Executive Order 06-25
Dear President Pro Tem Baruth and Speaker Krowinski:
On October 1, 2025, you requested a formal opinion related to Executive Order 06-25,
titled “Promoting Housing Construction and Rehabilitation” (“the Order”). Specifically, you
asked if “policy changes” in the Order related to environmental regulations and building energy
standards “effectively repeal or modify existing legislative enactments, including 10 V.S.A.
§ 914 and 2024 Acts and Resolves Nos. 151 and 181.”
This Office has concluded that the provisions related to wetlands and building energy
standards are lawful to the extent they instruct agencies to begin rulemaking. To the extent they
intend to announce new legal standards different from those in statute or current rule, they
exceed the Governor’s authority.
I understand that rulemaking related to some of the Order’s objectives has started. I also
understand that, by its terms, the Order is not intended to conflict with statutes, and its
implementation involves an on-going, interactive process of internal review. Agencies in the
Governor’s administration have rulemaking authority in the relevant areas of law, and some of
the Order’s stated objectives may be advanced through rulemaking.
I. Executive Order 06-25
On September 17, 2025, the Governor issued Executive Order 06-25, Promoting Housing
Construction and Rehabilitation. The Order took effect immediately and remains in effect
“unless modified or extended by subsequent executive action.” EO 06-25, § IX.
The Order aims to address Vermont’s affordable housing shortage. It mainly does so
through directives to the Governor’s administration and bodies that have housing-related
authority and a majority of governor-appointees. It requires reports and recommendations,
creates advisory groups, expedites agency reviews, and requires updates to working procedures.
The Order has several qualifiers, including that it is not “intended to contravene the intent
of the Legislature.” EO 06-25, § 8.2. Agencies must “[i]dentify statutory clarifications needed
for effective implementation” and “[r]ecommend emergency rulemaking where appropriate.” EO
06-25, § 8.2. 1 Agencies “unable to implement specific provisions due to legal constraints” must
notify the Governor’s Office immediately and recommend alternatives. Id. § IX.
Finally, as discussed below, the Order states regulatory policy objectives in two areas.
II. Focus of Our Review
You ask whether the Order effectively repeals or modifies statutes. Generally, executive
orders cannot make new laws or suspend existing ones. They can instead articulate how existing
law is to be implemented. Read with its qualifiers, most sections of the Order can, on their face,
be implemented in a manner consistent with statutory law.
For example, Section 2.2 directs “deferred payment of fees until project completion” in
certain circumstances. This Office does not read this (or any) provision in the Order as a source
of new law. See, e.g., 32 V.S.A. § 710 (payment of agency fees); 3 V.S.A. § 2822 (permit fees);
10 V.S.A. § 6083a (Act 250 fees). To the extent the Order directs deferral of fees as allowed by
existing law, it is lawful; to the extent it intends to direct action contrary to existing law, it is not.
Two sections warrant more analysis.
a. Section 1.1 – Reinstatement of 2020 Building Energy Standards as an Option
The first is section 1.1, part of Section I, titled “Building Energy Code Reform.” It states:
[a]ll persons commencing building construction projects on July 1,
2024 or after shall have the option of complying with the 2020
Vermont Residential Building Energy Standards (RBES),
Commercial Building Energy Standards (CBES), including the
2020 Stretch Code, or the 2024 RBES and CBES.
EO 06-25, § 1.1. The RBES and CBES are energy efficiency standards for residential and
commercial buildings. The “Stretch Code” is an optional, higher residential standard.
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The Order also states it is not intended to “limit the authority” of agencies and boards. Id. § 8.1.
2
b. Section 3.1 – Wetlands Modifications
The second part of the Order that states regulatory policy objectives is section 3.1, which
relaxes wetland permitting requirements and reduces buffer zones. 2 The Order provides that
certain development projects need wetlands permits only for impacts to wetlands “identified on
the most current [Vermont State Wetland Inventory] maps.” EO 06-25, § 3.1. In other words, “no
state wetland permits are required for impacts to unmapped Class II wetlands” in certain areas.
Id. The Order also states an intent to reduce protective buffer zones around Class II wetlands. Id.
The Order directs the Agency of Natural Resources to engage in rulemaking to ensure
that objectives related to wetlands are established in rule. Id.
III. Analysis
a. Separation of Powers Considerations
Separation of powers is a fundamental principle of Vermont’s Constitution. The
“Supreme Legislative power” belongs to the General Assembly. Vt. Const. ch. II, § 2. The
“Supreme Executive power” belongs to the Governor, id. § 3, who “is also to take care that the
laws be faithfully executed,” id. § 20. Judicial power is vested in a “unified judicial system.” Id.
§ 4. Vermont’s Constitution further instructs that the three “shall be separate and distinct, so that
neither exercises the powers properly belonging to the others.” Id. § 5.
The separation is not “absolute.” In re D.L., 164 Vt. 223, 229 (1995). It permits response
to “complex challenges and problems faced by today’s state government.” Hunter v. State, 2004
VT 108, ¶ 21. “Practical realities of daily government require … a certain amount of overlapping
or blending” of powers. Id. (citing In re D.L., 164 Vt. at 228-29). Overlap is permissible, but one
branch cannot eclipse or “usurp” constitutional power of another. In re D.L., 164 Vt. at 229.
This Office has applied these principles to executive orders before. In 1981, for example,
this Office reiterated the limitations of an executive order as follows:
Unlike the words “statute” or “duly adopted rule,” which denote
rules of law of known dimension … [an] executive order is simply
the documentary rendering of a governor’s formal action as chief
executive. . . . Where an executive order responds to a specific
constitutional or statutory authority it is valid and enjoys the status
of a rule of law, not because it is an executive order but because
the governor possessed the power to take the action in question.
Every question of the validity of an executive order is at base a
question of the scope of gubernatorial power.
Atty. Gen. Op. No. 81-61 at 3-4, 1981 WL 873001, at *2 (Vt. A.G. Mar. 23, 1981).
2
These apply to residential and mixed-use housing projects in listed areas. EO 06-25, § 3.1.
3
Review of executive orders thus poses reoccurring questions, such as whether “the order
create[s] new law or execute[s] an existing legislative or constitutional mandate,” and whether a
governor is “the proper state official to execute a particular law.” Atty Gen. Op. No. 60-76 at 4,
1976 WL 531592, at 2 (Vt. A.G. Mar. 15, 1976) (“no new law can be created by the
governor”). Governors and agencies have “specifically enumerated duties, and it is a fair
conclusion that the governor is not the alter ego of agency secretaries or department
commissioners, and cannot act in their stead, even if he is responsible for their appointment.” Id.
at 4-5, 1976 WL 531592, at 2; see also id. (“specific agencies, rather than the governor, must
adopt administrative rules”).
That said, governors have “Supreme Executive power” and must ensure laws are
faithfully executed. 3 Presumptions of validity likely apply to their orders, as is true elsewhere.
See, e.g., In re Handy, 144 Vt. 610, 612 (1984) (agency action presumed valid); Trybulski v.
Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 10 (1941) (every doubt resolved in favor of
statute’s validity). Several courts interpret executive orders under principles used for statutes. See
Mills v. Hartford Healthcare Corp., 298 A.3d 605, 615-16 (Conn. 2023) (collecting cases).
b. Rulemaking Considerations
Importantly, part of the Order directs the Agency of Natural Resources to commence
rulemaking, EO 06-25, § 3.1, and the Agency has already complied. See Rule No. 25P040
(“Vermont Wetland Rules”), https://dec.vermont.gov/watershed/wetlands/wetlands-rulemaking.
Nothing bars the Governor from instructing agencies with rulemaking authority to
commence rulemaking. That said, while an agency can enter the process with a clear vision, it
must also keep an open mind. See, e.g., In re Highlands Master Plan, 25 A.3d 1172, 1180 (N.J.
Super. App. Div. 2011) (executive order may not direct agency to contravene statute); In re
Agency of Admin. State Blds. Div., 141 Vt. 68, 76 (1982) (agency cannot use rulemaking to
enlarge statutory authority). This opinion takes no position on the substance of potential rules.
With these principles in mind, our analysis of two provisions in the Order follows.
c. Section 3.1 (Wetlands)
Section 3.1 states two objectives related to wetlands: relaxation of certain permitting
requirements and reduction of certain buffer zones. Each is addressed below.
i. Permitting Limitations
Section 3.1 first provides that “Class II wetlands are limited to those features identified
on the most current VSWI maps and no state wetland permits are required for impacts to
unmapped Class II wetlands.” EO 06-25, § 3.1.
3
Executive orders issued within constitutional limits can help fulfill constitutional duties. See, e.g.,
Communc’ns Workers of Am., AFL-CIO v. Christie, 994 A.2d 545, 561 (N.J. App. Div. 2010) (governor
may ensure faithful execution of law through order); Markham v. Wolf, 190 A.3d 1175, 1183 (Pa. 2018)
(order “that, in essence, creates law, is unconstitutional,” but those implementing law are valid).
4
Wetlands permitting is required by 10 V.S.A. § 913(a). Unpermitted activity is
prohibited, except as provided by Department of Conservation rule. Id. This statute applies to
“significant wetlands,” which include a Class II wetland, id. § 902(11), defined as either one
identified on the inventory maps or one that the Secretary determines requires protection. 10
V.S.A. § 902(7).
As authority for its objective, the Order points to the Secretary’s existing discretion. EO
06-25 at 3. It appears to construe the Secretary’s authority to make wetlands determinations as
including the authority to categorically decline to classify certain, unmapped wetlands as Class II
wetlands and thereby exempt them from permitting. Id. at 2-3 (citing 10 V.S.A. § 914(a),
providing that Secretary may determine whether any wetland is a Class II or Class III wetland).
The Secretary has discretion regarding wetlands classification in particular cases. 4
Neither the Secretary nor the Governor, however, can unilaterally create a new, categorical
exception to wetlands permitting requirements because statute requires that permitting
exemptions be created by rule. See 10 V.S.A. § 913(a) (“[e]xcept for allowed uses adopted by the
Department by rule,” permits required).
ii. Buffer Zones
Section 3.1 purports to reduce to 25 feet the protective “buffer zones” around Class II
wetlands impacted by housing projects in certain areas.
The width of buffer zones for Class II wetlands “shall extend at least 50 feet . . . unless
the Secretary determines otherwise under section 914” of title 10. 10 V.S.A. § 902(9); see also
Vt. Wetland Rules § 4.2. Under § 914, the Secretary “may establish the necessary width of the
buffer zone of any Class II wetland as part of any wetland determination pursuant to the rules of
the Department.” 10 V.S.A. § 914(b); see also Vt. Wetland Rules § 4.3(b)(3).
These provisions afford the Secretary certain discretion. They do not, however, give the
Secretary authority to immediately and categorically halve the statutory 50-foot presumptive
buffer zone around Class II wetlands.
d. Section 1.1 (Building Energy Standards)
Section 1.1 of the Order addresses building energy standards. It states that anyone
starting building construction on or after July 1, 2024, has the “option” of complying with either
the 2020 or the 2024 standards, which were both adopted via APA rule. EO 06-25, § 1.1.
The residential and commercial building energy standards are governed by similar
statutes. Residential construction must comply with the RBES, and the Public Service
Commissioner must “amend and update” the RBES via rulemaking. 30 V.S.A. § 51(b), (c). The
same is true for the CBES. 30 V.S.A. § 53(b), (c). Certain considerations are unique to RBES
4
The Department, like the Secretary, must make determinations under § 914. 10 V.S.A. § 905b(18).
5
amendments. They include consistency with “duly adopted” energy and housing policy, and
“cost-effective[ness] and affordab[ility]” from a consumer’s perspective. 30 V.S.A. § 51(c)(1). 5
Prior to June 3, 2024, the Commissioner had to update the RBES and CBES on a certain
schedule; now updates are discretionary. Id. §§ 51(c), 53(c).
The Department of Public Service last revised the RBES and CBES in 2023, following a
corresponding update to international standards which, at the time, required Vermont updates.
The most recent RBES and CBES administrative rules became effective on July 1, 2024.
The statutes are explicit about which version of the rules govern. While people
commencing construction “before the effective date of the amended” rules have the “option” of
complying with the amended or existing rules, once new rules take effect, “any person
commencing residential construction shall comply with the most recent version.” 30 V.S.A.
§ 51(c)(2); see id. § 53(c)(2) (same, CBES). This is restated in Act 250. 10 V.S.A.
§ 6086(a)(9)(F) (applicants seeking affirmative finding under Criterion 9(F) “shall provide
evidence” that development “complies with the applicable building energy standards under 30
V.S.A. § 51 or 53”). The Order’s statement that all persons have the option of complying with
superseded rules is inconsistent with these statutes. 6
The statutory requirement to “comply with the most recent version” of the rules impacts
private parties in multiple ways. Builders and others must certify that projects comply with the
RBES and CBES. 30 V.S.A. §§ 51(f)(1), 53(d). Citizens can sue those making these
certifications for damages. 30 V.S.A. §§ 51(g), 53(e). Anyone relying on the Order as a source of
new law that modifies the need to comply with the most recent building energy standards does so
at the risk of being non-compliant with binding, statutory law.
The Order may question if the latest rules are valid. For instance, Act 151 of 2024 took
effect upon passage in June 2024, a month before the 2024 rules. It made rule updates
discretionary instead of mandatory. See 2023, No. 151 (Adj. Sess.), §§ 3, 4. Thus, updates that
were required when rulemaking was pending became discretionary before amendments took
effect. In addition, Act 47 of 2023 required that regional plans include a “housing element”
resulting in building-code-compliant homes “where most households spend not more than 30
percent of their income on housing.” 2023, No. 47, § 11 (amending 24 V.S.A. § 4348a(a)(9)).
This opinion concludes only that statutes require compliance with the most recent version
of the rules and here, those are the rules that took effect in 2024. When an agency believes a
statutory change impacts its rulemaking authority, the APA provides a process for determining if
rule revisions are required. See 3 V.S.A. § 848(d)(1). Here, once the 2024 rules took effect, and
unless and until they are revised through rulemaking, they are the only ones with legal effect.
5
Amendments to the CBES must be consistent with state energy policy; the statute does not reference
affordability. Compare 30 V.S.A. § 53(c)(1) with 30 V.S.A. § 51(c)(1) (considerations for RBES).
6
See also 3 V.S.A. § 800(6) (prohibiting adoption of policy that avoids rules required by statute).
6
IV. Conclusion
The Order does not exceed the Governor’s authority to the extent it directs agencies to
commence rulemaking related to wetlands and building energy standards.
The Order exceeds the Governor’s authority to the extent it intends to immediately
change any law related to wetlands and building energy standards without rulemaking.
Reliance on the Order as a source of new law carries legal risk and may delay desired
residential and commercial development outcomes.
Sincerely yours,
CHARITY R. CLARK
Attorney General
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