AG Herring says new Governor cannot pull out of Regional Greenhouse Gas Initiative through executive order

RICHMOND (January 11, 2022) – In an important official opinion issued at the request of Delegates Charniele Herring and Rip Sullivan, Attorney General Mark R. Herring says that “the Governor may not repeal or eliminate, through an executive order or other action, the enacted statutes and regulations pertaining to the Commonwealth’s participation in the Regional Greenhouse Gas Initiative and/or a market-based trading program like the Regional Greenhouse Gas Initiative, or do away with the requirement that electricity producers hold carbon dioxide allowances that equal the amount of their carbon dioxide emissions.” Already, the Regional Greenhouse Gas Initiative (RGGI) has generated more than $220 million to support climate change mitigation projects in Virginia.

“Climate change remains an urgent and ever-growing threat to Virginians, their safety, their health, and their communities. Virginia’s participation in RGGI is crucial to reducing our carbon pollution, while simultaneously investing hundreds of millions of dollars in mitigation and resilience efforts, said Attorney General Herring. “The Virginia Constitution is clear: the Governor does not have the authority to single-handedly repeal or eliminate a law or regulation that has been passed by the General Assembly. It is time we all work together to fight climate change and leave a better, healthier planet for future generations.”

In 2020, Virginia joined RGGI when the General Assembly passed the Clean Energy and Community Flood Preparedness Act, authorizing the Department of Environmental Quality to establish “a carbon dioxide cap and trade program to reduce carbon emissions…[and] authorizes the Director of DEQ ‘to establish, implement, and manage an auction program to sell allowances into a market-based trading program consistent with the [Regional Greenhouse Gas Initiative] program and this article.’”

As Attorney General Herring explains in his opinion, according to the separation of powers doctrine, “the Constitution of Virginia does not grant the Governor the power to suspend laws, in fact it requires the opposite that ‘[t]he Governor shall take care that the laws be faithfully executed.’” He adds that the Constitution “provides ‘[t]hat all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.’” Attorney General Herring also cites one of his previous opinions, explaining that “‘the Governor may not unilaterally direct, by any means, that a validly adopted regulation that has the force of law be suspended or ignored.’”

Attorney General Herring concludes the opinion saying, “it is my opinion that the Governor may not, solely through an executive order or other executive action, repeal or eliminate the regulatory requirement that electric utilities and other electricity producers hold carbon dioxide allowances that equal the amount of their carbon dioxide emissions.”

In July 2021, Attorney General Herring and his team successfully defended Virginia’s participation in RGGI against a legal challenge that sought to terminate the regulations that allow the Commonwealth to operate its CO2 Budget Trading Program.

Attorney General Herring has been a consistent champion for protecting the environment and fighting climate change. He wrote an official opinion in 2017 confirming that the Commonwealth had the authority to regulate carbon pollution. He successfully fought back against the Trump Administration’s attempts to gut America’s efforts to combat climate change, including Trump’s efforts to replace the Clean Power Plan and repeal the Clean Car Plan. He filed suit against the EPA to protect the Chesapeake Bay, and has secured the largest environmental damages settlement in Virginia history.