61 Dems say Virginia's participation in RGGI is up to legislature

On Thursday, 61 Virginia Democrats — more than a third of the General Assembly — signed onto a letter addressed to the state’s Air Pollution Control Board opposing Gov. Glenn Youngkin’s proposed regulatory route to remove Virginia from the Regional Greenhouse Gas Initiative.

On Aug. 31, Travis Voyles, the acting secretary of natural and historic resources, outlined the administration’s plans to remove Virginia from RGGI through the Administrative Process Act — which entails a period of public comment and eventually a vote by the air board.

But the 61 legislators who have signed onto the letter say that’s “improper and illegal” and that it’s a decision for the General Assembly.

RGGI is a carbon market composed of 11 states where energy producers trade emission reductions for credits or buy credits to emit carbon dioxide past a capped amount. Proponents of the initiative say it can incentivize producers to use fewer fossil fuels over time, and the funding generated through quarterly auctions is used for environmental projects. In 2021, Virginia raked in $228 million in funding for flood protection and energy efficiency programs.

The letter comes amid debates surrounding whose authority it is to pull Virginia out of RGGI. Environmental advocates, legal groups — and now many Democrats in the General Assembly — say that it’s the legislative body’s purview to remove Virginia from RGGI, that lawmakers put Virginia into the initiative.

“We write to articulate the reality that Virginia’s participation in RGGI is mandated by law,” the letter reads. “Therefore ultimately only a change in the law that passes both chambers of the General Assembly and is signed into law by the governor can remove Virginia’s participation.”

It seems that the attorney general’s office might share that view. At an air board meeting this spring, member Hope Cupit said she received correspondence from the office reiterating the point.

Environmental advocacy group Appalachian Voices has a pending lawsuit in which it seeks to obtain a copy of the correspondence after it unsuccessfully requested the document under the Freedom of Information Act.

The letter, spearheaded by Sen. Lynwood Lewis, D-Accomack, added that the air board is limited in its abilities because it was created by the General Assembly.

“You only have the powers that the General Assembly grants you,” the letter said.

The Democrats’ letter also notes the law that enables participation in RGGI — the Clean Energy and Community Flood Preparedness Act — adding, “it is clear our intent for Virginia to participate in RGGI.”

With Youngkin’s proposed regulatory route, his goal is for Virginia to withdraw from the initiative by the end of 2023. The air board is composed of gubernatorial appointees on staggered terms, and with new appointees who could vote in Youngkin’s favor, legal groups argue that this may trigger legal challenges.

Some members of the legislature have worked on a withdrawal, but efforts failed in the 2022 session. House Majority Leader Terry Kilgore, R-Scott, and Sen. Richard Stuart, R-Stafford, carried bills that would have repealed the Clean Energy and Community Flood Preparedness Act.

All General Assembly seats are up for election in 2023. Should the legislative body change its mind about RGGI, lawmakers would present such measures during the 2024 session.