Dive Brief:

• Four environmental and climate groups filed a petition Monday in Fairfax Circuit Court challenging the authority of Virginia’s Air Pollution Control Board and Department of Environmental Quality to withdraw the state from the Regional Greenhouse Gas Initiative.
• The groups argue that the withdrawal, which received final approval from the air board in July, is “impermissible under the Virginia Administrative Process Act.”
• Gov. Glenn Youngkin’s administration maintains that the state’s executive branch does have the power to remove Virginia from RGGI, and that the regional carbon market program is a “regressive tax” that burdens residents.

Dive Insight:

“Our State Air Pollution Control Board has acted and believes that Virginia is not required to be in RGGI,” said Virginia Secretary of Natural and Historic Resources Travis Voyles in a statement. “The Office of the Attorney General confirmed the State Air Pollution Control Board has the legal authority to take action on the regulatory proposal using the full regulatory process — and the Board voted to do just that.” 

The air board voted 4-3 in July to adopt a regulation withdrawing the state from RGGI, after a 30-minute closed session to discuss possible resulting litigation, according to the Virginia Mercury.

In December, the air board had voted 4-1 to move ahead with the exit, with abstentions from board members Lornel Tompkins and Hope Cupit, who cited their concerns that the board did not have the legal authority to take this action. 

The petition — filed by the Southern Environmental Law Center on behalf of the Association of Energy Conservation Professionals, Virginia Interfaith Power and Light, Appalachian Voices, and Faith Alliance for Climate Solutions — argues that the air board and DEQ “exceeded their delegated authority” by pursuing an exit from RGGI.

They allege that the state constitution was violated by the board and DEQ, who “suspended and ignored the execution of law and invaded the General Assembly’s legislative power.”

“The fact is that the General Assembly made a specific legislative decision to require Virginia to participate in RGGI, and only the General Assembly may revisit that choice,” the petitioners said.

They ask the court to “invalidate, vacate, and declare null and void the regulatory action” that was published in the Virginia Register of Regulations on July 31. 

Virginia joined RGGI in 2021 after the state legislature passed a 2020 law regarding participation, and Youngkin’s administration announced its plan to exit RGGI in March 2022. 

Since then, the administration and state environmental groups have clashed over whether the executive branch has the authority to withdraw from RGGI through regulation alone, as participation was established through the legislative process. 

“Despite the decision of the Air Board to leave RGGI, the state’s participation is guaranteed through the end of 2023,” Peter Anderson, Director of Energy Policy for Appalachian Voices, said in a statement. “What happens then is unclear.”