Judge rules Youngkin’s withdrawal from RGGI was unlawful

In 2020, a unified Democratic government in Virginia passed and adopted several pieces of legislation to expedite the transition away from the use of fossil fuels to generate electricity. One of them authorized Virginia to enter into an interstate compact to require utility companies to pay for the right to emit greenhouse gas emission through a series of auctions. 

Within an hour of being sworn in as Virginia’s governor in January 2022, Republican Glenn Youngkin signed an executive order signaling his intent to withdraw from the Regional Greenhouse Gas Initiative. Legislation to exit RGGI failed to pass the General Assembly that year and Youngkin opted to use executive means to do so. 

This week, retired Judge C. Randall Lowe ruled that Youngkin did not have the authority to end Virginia’s participation. 

“The putative repeal of the RGGI Regulation was beyond the statutory authority of the Respondents, and therefore unlawful and without effect,” Lowe wrote in a five-page ruling. (read the ruling)

Soon after the State Air Pollution Control Board voted to leave RGGI on a party-line 4-3 vote, the Southern Environmental Law Center organized a lawsuit on behalf of several groups. They claimed they they would be harmed due to the loss of funding they would receive from Virginia’s share of the auction proceeds. The law that authorized Virginia to join RGGI required 45 percent of the proceeds to go to flood mitigation efforts and 50 percent to go to programs that provide energy efficiency improvements to low-income households. 

Virginia participated in Auction 51 through Auction 62 and received over $827 million in proceeds. 

The suit was originally filed in Fairfax District Court but transferred to Floyd Circuit Court after several plaintiffs were dismissed for a lack of standing. The only one left was the Association of Energy Conservation Professionals, an organization based in the southwest Virginia locality. 

“Petitioner is an association of weatherization professionals whose mission is to provide, promote, and advocate for energy conservation measures on behalf of its members,” Lowe writes in the ruling which found that AECP did have the right to bring the case. 

Lowe also wrote that the legislation that authorized participation in RGGI required a corresponding regulation to exist. 

“If respondents had merely amended the RGGI regulations in ways that were not inconsistent with the RGGI Act, it is doubtful that their authority to do so could be challenged,” Lowe wrote. “But that is not what happened here.”  

The SELC released a statement welcoming the decision. 

“Future generations deserve a livable climate,” said SELC Senior Attorney Nate Benforado. “This ruling puts Virginia back on track to address and adapt to climate change at a critical moment, while bringing in critically needed funding to help Virginians all across the Commonwealth.” 

The case is likely going to appeal according to a report in a special edition of the Virginia Political Newsletter.

 “Governor Youngkin remains committed to lowering the cost of living for Virginians by continuing to oppose the Regional Greenhouse Gas Initiative, which fails to effectively incentivize emission reductions in the Commonwealth,” said spokesperson Christian Martinez. “Instead, it functions as a regressive tax, hidden in utility, bills passed on to all Virginians.”

The group Americans for Prosperity-Virginia describes the Southern Environmental Law Center as a one of a number of “reckless ideological groups driving radical and irresponsible energy policies.” A statement released on November 21 said they supported an opinion from Republican Attorney General Jason Miyares rather than the ruling by a state judge. Now it will be up the legislature to decide.

“While this decision should be appealed, the General Assembly would be wise to act in January and more explicitly remove Virginians from this cap and trade scheme, which only raises Virginians’ power bills to benefit a political ideology that voters have rejected,” said Tim Parrish, the state director for AFP-VA.

For more on next steps, read Charlie Paullin’s article on the Virginia Mercury posted on November 20.

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