Floyd County judge keeps RGGI withdrawal lawsuit alive 

Virginia Governor Glenn Younkin has twice now indicated a willingness to use the executive branch to undo energy-related policies that his Republican party has been unable to remove through the General Assembly due to being in the legislative minority. 

On his first day in office in January 2022, Youngkin signed Executive Order Nine which directed staff to notify the Regional Greenhouse Gas Initiative that Virginia would leave the interstate compact the Commonwealth had only recently joined. 

Under RGGI, power generating companies have to purchase credits if they exceed certain thresholds of carbon and other greenhouse gas emissions. Virginia R

Money raised through auctions RGGI held for the credits went back to states in the form of funding for programs such as flood control mitigation efforts. When legislation for Virginia to leave RGGI failed to pass in 2022, Youngkin did what he said he would do and worked through regulatory means to end the practice.

The Southern Environmental Law Center filed a suit on behalf of several organizations in Fairfax Circuit Court last August to stop the exit with pleadings arguing that Youngkin’s actions violated the Virginia Constitution because only the General Assembly could sanction withdrawal from RGGI. 

In November, that court argued that none of the organizations had demonstrated they had the right to bring the suit forward, a legal principle called “standing.”  (Learn more at Cornell University’s Legal Information Institute)

However one of the organizations, Floyd-based Association of Energy Conservation Professionals, did have standing because they had received proceeds from RGGI to help weatherize homes in preparation of more intense storms caused by a changing climate. The case was referred to that locality’s Circuit Court.  

According to the Roanoke Times, the Virginia attorney general’s office filed a motion to dismiss the case which was denied in February by Floyd County Circuit Court Judge Mike Fleenor. That judge recused himself three weeks later and the retired Judge Randall Lowe was assigned to the case. 

There was a hearing on Monday once again on the attorney general’s request to dismiss the case. According to the Roanoke Times, Judge Lowe allowed the case to move forward to a September 16 hearing on the merits. 

However, the Roanoke Times article states that Judge Lowe denied a request for Virginia to rejoin RGGI while the case is pending. Participation ended on December 31, 2023 and two auctions have been held so far since the Commonwealth dropped out. 

The SELC issued a press release supporting Judge Lowe’s decision to let the matter proceed.

“We are pleased with today’s decision, which allows this case to move forward and will ensure the administration’s decision to leave RGGI—which we have repeatedly alleged is unlawful—will be reviewed by a court,” wrote SELC senior attorney Nate Benforado. “We look forward to the next steps in this action and will work as expeditiously as possible to get Virginia back in RGGI.” 

Earlier this month, Younkin announced that Virginia would no longer mandate that new cars sold after 2035 be fossil-free. That decision also came after bills filed by Republican legislators to undo previous legislation tying Virginia’s air quality standards to those in California which exceed federal parameters. 

Before you go: The time to write and research of this article is covered by paid subscribers to Charlottesville Community Engagement. In fact, this particular installment is from the June 26, 2024 edition of the newsletter. To ensure this research can be sustained, please consider becoming a paid subscriber or contributing monthly through Patreon.