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Governor Northam sends letter to members of the Virginia State Crime Commission



RICHMOND—Today, (August 19, 2019) Governor Ralph Northam sent a letter to members of the Virginia State Crime Commission in advance of their hearing on legislation introduced during the 2019 Special Session.

Governor Northam called the Special Session in June to address the emergency of gun violence in the Commonwealth; legislators voted to adjourn after 90 minutes and refer all legislation to the Crime Commission for further study.

August 19, 2019

Virginia State Crime Commission
Attn: Written Comments
1111 East Broad Street, Ste. B036
Richmond, Virginia 23219

Dear Members of the Crime Commission:

On June 4, five days after a horrific mass shooting took twelve innocent lives and injured four more in Virginia Beach, I called a Special Session of the General Assembly to address the emergency of gun violence in our Commonwealth. I called this session because we in Virginia are all too familiar with the horror of mass shootings—I never want another governor to have to mourn with the families of innocent people killed at their workplace or their school. But we also know it is more than just mass shootings; the daily toll of gun violence in our communities kills more than 1,000 Virginians each year. That’s an average of three people killed by guns every single day.

Virginians deserve action—and that is what I asked for when the General Assembly convened on July 9. Instead, legislators chose to adjourn ninety minutes after convening without hearing or debating a single bill, referring everything to the Crime Commission for further study. In the weeks and days since, we have watched as gun violence continues to upend communities across our Commonwealth and nation.

The legislative package I put forward during the Special Session included commonsense proposals that will undoubtedly save lives. In fact, they are so common sense that even the President of the United States and other Republican leaders recently announced their support for some of these proposals, including background checks and an Extreme Risk Protective Order. While I reject the assertion that these bills need further study, I am confident that the presentations you all will hear on August 19 and 20 will only underscore the importance of implementing these measures.

Data show these measures are not only common sense and bipartisan—they are effective. An Extreme Risk Protective Order, now adopted in 17 states and Washington, D.C., has been shown to significantly reduce suicide deaths by firearms. Virginia’s One Handgun a Month law dramatically reduced the number of crime guns from Virginia recovered in the Northeast, a total drop of 54 percent. Since the repeal of this law in 2012, Virginia has returned to being the top source state for crime guns recovered in D.C., Maryland, New York, and West Virginia. And we know that background checks work: In 2018, nearly 2,000 prohibited persons were prevented from purchasing firearms from a federally licensed dealer in Virginia. Many more prohibited persons continue to purchase guns—without background checks—each and every day through private sales.

These proposals do not need further study. In fact, some of these measures were first recommended after the Virginia Tech shooting in 2007. The Virginia Tech report called for changes to higher education and mental health policies; importantly, the report also urged lawmakers to take direct action on gun violence through expanded background checks. While many of the mental health recommendations were embraced and adopted by the General Assembly, lawmakers ignored recommendations on gun violence. The assertion that more study is needed—twelve years and over 70 mass shootings after Virginia Tech—is inaccurate and inexcusable.

Furthermore, it is wrong to continue perpetuating the false idea that mental illness is solely to blame for gun violence. Research has repeatedly demonstrated that people experiencing mental illness are more likely to be victims of violence than perpetrators. I refuse to allow many politicians and the gun lobby to scapegoat some of our most vulnerable citizens as an excuse for their inaction.

As you continue your work on this important issue, I hope each of you will join me in rejecting baseless claims, stereotypes, and excuses. Commonsense gun safety legislation has already saved lives, where implemented. It is past time to save lives in Virginia.


Ralph S. Northam
Governor of Virginia

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Governor Youngkin awards grant to study meat processing facility for Fauquier County



On October 4, 2022, Governor Glenn Youngkin awarded Fauquier County $20,000 from the Governor’s Agriculture and Forestry Industries Development (AFID) Fund Planning Grant program to study the economic viability of locating a small-scale meat processing facility at the Fauquier Livestock Exchange in Marshall, VA. The Fauquier County Agricultural Advisory Committee will oversee the project as part of its ongoing efforts to increase the economic viability of opportunities for agricultural producers and by providing advice and recommendations to the Board of Supervisors on matters affecting the agricultural economy. An additional $20,000 in matching funds has been pledged by Fauquier County, Fauquier County Farm Bureau, and the PATH Foundation to study the feasibility of the project.

“As I travel across the Commonwealth, I listen to our farmers about what they need to be successful, and additional meat processing capacity is always at the top of the list,” said Governor Youngkin. “I am pleased to partner with Fauquier County and its cattlemen with this AFID grant to explore ways to increase the resiliency of Virginia’s agricultural economy and provide farmers new opportunities to be successful.”

“Agriculture is the Commonwealth’s largest private industry, and in many counties, especially those of the northern Piedmont, livestock production is what drives the agricultural economy,” said Secretary of Agriculture and Forestry Matthew Lohr. “Value-added agricultural enterprises are critical to the long-term health of the agriculture industry and to the preservation of working lands. It’s important for cattle producers to have access to as many market channels as possible, and consumers benefit from access to locally grown and processed agricultural products.”

The Virginia Department of Agriculture and Consumer Services administers the AFID Planning Grant program, which is designed to support planning efforts and local initiatives that benefit agriculture and forestry. Since 2013, AFID Planning Grant totaling $1,063,232 have been awarded to 52 projects in 63 localities across the Commonwealth.

AFID Planning Grant applications are accepted on a rolling basis. Successful applications will demonstrate a clear need, a proposed solution, strong support from local government and the agriculture and forestry community, and the ability to provide matching funds.

For additional information on the AFID Planning Grant program, click here.

Please direct questions about the program and application process to

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COVID’s effect on the nursing crisis and more Va. headlines



The state Capitol. (Ned Oliver/ Virginia Mercury)


• Releasing a new energy plan for the state, Gov. Glenn Youngkin repudiated Democrats’ clean-energy targets and said he wants an “all of the above approach” that heavily emphasizes nuclear power.—Washington Post, News & Advance

• Pressed on Fox News for a response to former President Donald Trump’s recent post calling Senate GOP leader Mitch McConnell’s Asian American wife “coco chow,” Youngkin said: “I’m not a name-caller.”—Mediaite

• Virginia candidates Yesli Vega and Hung Cao were among 11 GOP congressional challengers who raised more than $1 million in the third quarter. Vega is running against Rep. Abigail Spanberger, and Cao is challenging Rep. Jennifer Wexton.—Axios

• Metro’s new Potomac Yard station in Alexandria won’t open until 2023 due to construction delays.—Washington Post

• COVID-19 exacerbated nursing shortages and drove up hospitals’ labor costs by more than a third. “The nursing crisis is not going to go away. It’s there.”—Cardinal News

• The Richmond School Board took a formal vote Monday to reject Youngkin’s proposed policies for transgender students.—WRIC

• An Indian restaurant in Henrico County was vandalized with racist graffiti.—Richmond Times-Dispatch

• The USS Gerald R. Ford, “the Navy’s most technologically advanced warship,” will deploy from Norfolk today after a weather-related delay.—Virginian-Pilot

• The town of Abingdon wants to cut down on loitering near the Virginia Creeper Trail.—Bristol Herald Courier

• Short Pump Town Center, the big outdoor mall near Richmond, is seeking an open container ABC license to let shoppers walk around with alcohol. The state has issued nine similar licenses so far.—Richmond BizSense


by Staff Report, Virginia Mercury

Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: Follow Virginia Mercury on Facebook and Twitter.

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Youngkin, attorney general expect schools to follow transgender policies



High school students across Virginia, including those at McLean High School, protested the governor’s revised transgender student policies on Sept. 27, 2022. Pictured is a student holding a poster that states, “The model policy is a modern travesty.” (Nathaniel Cline/Virginia Mercury)


As opposition to Gov. Glenn Youngkin’s new policies on the treatment of transgender students grows, Virginia still lacks an enforcement plan to have school divisions adopt them.

Under new guidance published last month, schools are required to inform a student’s parent or guardian whether a student wants to change their name, nickname, and/or pronouns from how they are listed in their records, among other policy changes.

The Republican Youngkin said he expects schools to follow the law when it comes to the new guidance.

“It’s the law, and so I don’t really have a lot of patience for folks that see a law and don’t comply with it,” said Youngkin on Sept. 20.

“Protecting parents’ fundamental rights to make decisions for their children is in the Virginia code, and I fully expect that each one of the school divisions should comply,” he said.

Asked about how the Office of the Attorney General plans to enforce the new guidance, a spokesperson said only that the attorney general expects schools to comply with the law.

Not all school divisions on board with governor’s guidance

Contrary to the administration’s expectations that school divisions will adopt the new policies, which differ from those instituted during Democratic Gov. Ralph Northam’s term, some school districts are already showing reluctance to adopt them.

Richmond City School Board voted 8-1 to pass a resolution on Monday rejecting the governor’s model policies and “affirm(ing) its commitment to providing protections for all students regardless of sexual orientation, gender identity or gender expression.”

Board member, Jonathan Young was the lone member to oppose the resolution.

“I am sorry that some persons don’t want parents to have any say pertaining to who can share a locker room, a shower room or a bedroom with their children,” he said.

In Northern Virginia, Alexandria City school officials said in a Sept. 19 letter to community members that they will continue to “implement and develop affirming policies” for students as they wait for a public comment period on the new policies to end later this month.

The city’s mayor and council members subsequently submitted a letter to the Department of Education on Sept. 28 that said they would support the city schools’ decision to “continue the previously adopted policy and practice respecting individual rights and protecting students from discrimination due to gender expression, gender identity, sexual harassment, and transgender status.

The council said in its letter that the proposed policies remove protections for transgender and nonbinary students in Virginia’s public schools and stigmatize and undermine their dignity.

School divisions’ unwillingness to buck state guidance on transgender students isn’t new.

A state law passed in 2020 directed school boards to adopt policies consistent with guidance issued by the Northam-era Department of Education that was intended to provide protections for transgender students.

But most school boards opposed the 2021 model policies and instead opted to follow guidance from the Virginia School Boards Association that contended existing policies met the law’s requirements.

According to Virginia Equality, only 10% of schools adopted the previous policies.

Virginia school boards are required by law to “see that the school laws are properly explained, enforced, and observed.”

Additionally, state law notes that parents who are aggrieved by an action of a school board may petition the circuit court to review the action.

In 2014, after transgender student Gavin Grimm was barred from using the boys’ bathroom by the Gloucester County School Board, he sued the school division. He later received $1.3 million after four years of litigation.

Del. Danica Roem, D-Prince William, said the governor’s action should be contested in court under the Virginia Human Rights Act.

High school students across Virginia including those at McLean High School walked out in protest of the governor’s revised transgender student policies on Sept. 27, 2022. Pictured is a student holding a poster that states “I should be in Calculus not defending human rights.” (Nathaniel Cline/Virginia Mercury)


Nw policies require parental involvement

Youngkin’s new policies note that “schools should attempt to accommodate students with distinctive needs, including any student with a persistent and sincere belief that his or her gender differs from his or her sex.”

But they also require parental approval for any changes to students’ “names, nicknames, and/or pronouns.” Further, the new policies direct schools to keep parents “informed about their children’s well-being,” specify that student participation in activities and athletics shall be based on sex and state that “students shall use bathrooms that correspond to his or her sex, except to the extent that federal law otherwise requires.”

The policy document argues that the First Amendment forbids “government actors to require individuals to adhere to or adopt any particular ideological beliefs” and that “practices such as compelling others to use preferred pronouns is premised on the ideological belief that gender is a matter of personal choice or subjective experience, not sex.”

On Sept. 26, a five-member school board in Rockingham County failed to adopt a similar policy that would have required that a parent or guardian be notified and provide consent if a student wished to be called by any other name not reflected in their school record. The vote on the measure, which had been put forward before the Youngkin administration announced its new policies, failed 1-3, with one member absent.

Student walkouts

Last week, thousands of students walked out of their respective schools in protest of the policies revised by the Youngkin administration.

Students called on the Department of Education to revoke the draft guidelines and for school boards to “protect all students by rejecting the VDOE’s guidelines,” according to Pride Liberation Project, an advocacy group for LGBTQIA+ rights.

Macaulay Porter, a spokeswoman for the governor, said in a statement that the guidelines make it clear that when parents are part of the process, schools will accommodate the requests of children and their families.

“Parents should be a part of their children’s lives, and it’s apparent through the public protests and on-camera interviews that those objecting to the guidance already have their parents as part of that conversation,” Porter said.

She also pointed out that the policy document states that students should be treated with compassion and schools should be free from bullying and harassment.

However, Sen. Jennifer Boysko, D-Fairfax, who along with Del. Marcus Simon, D-Fairfax, carried the 2020 legislation directing school divisions to comply with VDOE guidance on transgender students, said the changes proposed by the governor will put Virginia’s vulnerable transgender and nonbinary students at further risk for bullying and harassment.

She told the Mercury that the Northam-era policies were developed to support Virginia’s “most vulnerable students,” those who do not have supportive families and face decreased mental health and financial and housing insecurity. Now she’s concerned about the changes.

“Despite Governor Youngkin’s political gamesmanship in his quest to compete with the cruel policies of [Florida Gov.] Ron DeSantis and to divert attention from the issues at hand around abortion, we will continue to work collaboratively with our families and schools to assure that all students are safe and feel welcomed in their schools,” Boysko said.

Public comment period ends October 26

A 30-day public comment period on the policies is scheduled to end on October 26. The new policies will go into effect.

In less than a day after the public comment period opened, the number of responses had eclipsed the 9,086 total number of comments submitted on the Northam-era guidance.

Virginia had collected over 54,000 as of Sunday.

This story has been updated to add details about the Richmond School Board’s Monday-night vote.


by Nathaniel Cline, Virginia Mercury

Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: Follow Virginia Mercury on Facebook and Twitter.

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Trump allies have interviewed nearly 200 election officials to probe for weaknesses



(Parker Michels-Boyce / For the Virginia Mercury) Volunteers for “Operation Eagles Wings” are using surveys in eight states to seek support for conspiracy theories.

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

Two of Donald Trump’s most prominent allies in his fight to overturn the 2020 election are leading a coordinated, multi-state effort to probe local election officials in battlegrounds such as Michigan, Arizona, and Texas ahead of the November election.

The America Project, an organization founded by Michael Flynn, a retired three-star general, former national security adviser, and former Overstock CEO Patrick Byrne, has so far interviewed or attempted to interview officials in nearly 200 counties across eight swing states, according to copies of notes, recordings of the interviews, and other documents Votebeat found on web pages associated with the organization. The survey questions reflect the same debunked conspiracies and misleading information about elections that Flynn and Byrne have been propagating for years.

The survey questions appear intended to detect potential weaknesses in local election systems and gather detailed information about how elections are run. Election experts say the information could easily be used to fuel misinformation campaigns, disrupt voting, or challenge results.

“It seems consistent with their efforts to really understand how to manipulate the machinery of election administration in this country,” said Ben Berwick, counsel at national nonprofit Protect Democracy, a research and advocacy group.

In 2020, Byrne and Flynn were among the Trump loyalists who devised a plan to seize voting machines across the country and dig up enough evidence of fraud to persuade state lawmakers, Congress, or the vice president to overturn the election results. Now, they are focusing their efforts on the midterm election, with new strategies. A group backed by The America Project, for example, is attempting to purge voter rolls in Georgia ahead of the election.

The surveys are part of The America Project’s latest mission, dubbed “Operation Eagles Wings,” which is organized on, with web pages for each of the swing states the group is focused on. Key to the effort is building relationships with local election officials, according to two manuals for local volunteers on the organization’s websites. The officials are asked their opinions on debunked conspiracy theories to determine whether they are like-minded individuals. Interviewers are also marking down which clerks are particularly helpful.

Berwick points out that it’s the mission of prominent Trump supporters to fill positions of power — from governors down to local clerks — with people who believe their allegations of election fraud and improprieties. Noting who does and does not support the cause, he said, may be the group’s way of determining “who will be sympathetic to their efforts in the future.”

Election officials have generally been friendly to their interviewers, but have also repeatedly assured them that their elections are fair, voting machines are secure, and voter rolls are accurate.

In Harris County, Georgia, an election official repeatedly assured the interviewer that no one voted on behalf of deceased voters in the county.

“In some counties they did,” the interviewer insisted. “They weren’t removed from the rolls. And there have been some reports. It’s down to the proof. Prove it.”

The America Project and its officers did not respond to phone and email requests for comment about the surveys.

Surveys probe administrators on debunked theories

The survey questions vary slightly by state, though nearly all ask if counties remove deceased voters from the rolls. They also request contact information for vendors who service voting machines, and whether the county will consider designating a “neutral” third-party group to provide “training and support” for poll watchers. Some ask whether voting machines are connected to the internet, and if the local election officials are confident that local advocacy groups register voters “without bribery, intimidation or coercion.”

Interviewers asked the officials whether they support counting votes using a “manual process like that used in France.” This is a common talking point of such activists, who routinely praise the country for efficiently hand-counting votes and use it as justification to end the use of vote-counting machines. “If France can do it, we can do it!” shouted Trump’s former White House chief strategist Steve Bannon on his War Room podcast earlier this year. Mike Lindell, his guest and a prominent conspiracy theorist who is also the owner of MyPillow, agrees. “Terminate the machines!” yells Lindell. There are several differences between French and U.S. elections that make hand counting more effective in that country.

Byrne and Flynn have both voiced strong support for these ideas, routinely claiming without evidence that voting machines were manipulated and that left-leaning activists routinely facilitate mass voter fraud. “Our country and its founding principles are under attack by globalists and their allies in government, Wall Street, the legacy media and by others which make-up the political left in this country,” the Georgia for America First website states. “The weapon of choice is our vulnerable election system.”

The America Project was the top funder of the Arizona Senate’s election review, and Byrne supported the now-discredited investigation of voting machines in Antrim County, Michigan. Both have said they’ll continue to work to remake American elections.

“This will be our last shot,” wrote Byrne in his book, “The Deep Rig,” which he self-published last year. The book declares: “If we do not restore election integrity by then, then next election will also be rigged [sic], and we will have tipped our way into a fascist, authoritarian dystopian version of America, run by Goons.”

“Operation Eagles Wings”

A key goal of Operation Eagles Wings is to create small volunteer teams across the country who observe the entirety of the election process, starting in part with the surveys, according to the manuals Votebeat found.

It’s the expansion of what they have dubbed “the Virginia model,” which refers to the work of Cleta Mitchell’s Election Integrity Network in Virginia to create a network for the state’s 2021 election, according to the manuals.* The America Project provided funding to that effort.

The larger Operation Eagles Wings initiative is aimed at educating “election reform activists on everything from grassroots training to election canvassing and fundraising,” according to The America Project’s website. The site claims the group provides training “for Americans who want to make sure there are no repeats of the errors that happened in the 2020 election.”

“We need to do everything in our power to protect the voting process from election meddlers who care only about serving crooked special interest groups that neither respect nor value the rule of law,” the homepage says.

Along with the surveys, the initiative encourages election skeptics to serve as poll workers and observers, perform in-person “voter registration audits,” and to visit “large farms, factories, businesses and especially care homes,” and ask residents whether anyone is forcing them to vote, according to the manuals.

Election officials’ top concern? ‘Misinformation.’

Volunteers have conducted interviews in Arizona, Florida, Georgia, Michigan, Pennsylvania, Texas, Virginia, and Wisconsin, according to copies and audio recordings of the interviews that Votebeat found online. Most of the documents are stored on what appear to be unlisted pages of a site called, which had no active homepage as of Friday, while the Florida documents are accessible from the state’s page on

Election administrators surveyed by the group told Votebeat they weren’t bothered by the questions themselves, inviting them as opportunities to debunk misinformation.

Many election officials told the interviewers that their top concern about the upcoming election was misinformation. In Sterling Heights, Michigan, City Clerk Melanie Ryska told the interviewer that people insinuate “that we aren’t doing something right, that we are hiding something, that our [absentee] ballots are not legitimate, that we have early voting when we don’t, that we are trying to sway the vote somehow.”

Ryska told Votebeat in an interview that she is glad when people come to her for information rather than get it elsewhere.

“I just think it is great that different organizations are actually talking to clerks now and trying to get their side of the story, if you will because the misinformation dramatically hurts the election administrators, their team, the process,” she said. “Because it just creates so much mistrust in the process.”

Susan Nash, city clerk in Livonia, Michigan, said she was interviewed by two women with the group this summer. “Nothing wrong with questioning,” Nash told Votebeat. “It’s better to contact the clerks instead of getting misinformation elsewhere.”

Most interviews were conducted in person or by phone, with the interviewer filling out the survey themselves. Two election supervisors showed the completed surveys and told Votebeat the volunteers had not accurately recorded their answers.

Cortney Hanson, city clerk in Novi, Michigan, said the interviewers recorded most of her responses correctly, except for one question. They used their own words to mischaracterize the funds the city accepted from the Center for Tech and Civic Life before the 2020 election, writing that she accepted “Zuck bucks” — a term championed by some conservatives referring to the grant, which had been underwritten by grants from Facebook founder Mark Zuckerberg and his wife, Priscilla Chan.

“It’s not a term I would ever use,” Hanson said.

Wendy John, the county recorder in Graham County, Arizona, told Votebeat by email that the recorded answers “did not accurately reflect my response at all.” She did not elaborate.

Loaded questions

The range of questions asked by the survey puzzled experts. Barry Burden, a political science professor at the University of Wisconsin, said the survey was made up of an odd “scattering” of questions, few of which would elicit useful information about the systems used by the counties in question. He said that they would burden election officials who are already swamped with work and records requests given the upcoming midterms.

Flynn and Byrne, he said, “don’t have a good record of being fact-based and practical.”

The manuals say that Flynn and Byrne intend to post survey results publicly, something Burden said risks circulating incorrect information.

For example, several of the questions ask about security practices — such as whether counties use a specific database to remove deceased voters from the rolls. The state may use the database, but not the county —  a nuance that wouldn’t be captured by the survey.

In some surveys, election administrators were asked how many households in their jurisdiction have “more than 7 individual registered voters living at the same address.” While this appears to address bloated voter rolls, there are many instances where more than seven voters might lawfully live at the same address, such as college campuses and assisted living homes. Activists around the country have been filing voter challenges on those and other grounds, which are routinely thrown out by local election offices and courts.

At the end of the survey, the interviewer is asked to “characterize your interaction with the Supervisor of Elections as (circle all that apply): Helpful, polite, defensive, unhelpful, antagonistic.”

“They could be trying to find friends and enemies among election officials,” Burden said. “It’s really not clear. It’s just another strange part of the survey.”

The volunteer who interviewed Supervisor of Elections Lori Edwards in Polk County, Florida, in June circled helpful and polite and wrote that she was “super nice, very friendly and accomodating [sic].” The volunteer who interviewed Brenda Hoots, supervisor of elections in Hendry County, Florida, characterized her as “defensive.” Below his circled response, he wrote, “One of the most defensive interviews to date.” He placed stars next to the comments.

Hoots said she always tries to be very open about their procedures and wants the public to understand elections, but the person conducting the survey got mad when she tried to clarify her answers.

“Am I defensive?” she told Votebeat when shown the survey results. “Yes. This is my job. This is what I do. When you question this, you are questioning my integrity as a person.”

Correction, Sept. 30: This article originally misidentified the Election Integrity Network as the Election Integrity Group.

Reporters Oralandar Brand-Williams and Natalia Contreras contributed to this article.

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at

by Jen Fifield, Votebeat, Virginia Mercury

Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: Follow Virginia Mercury on Facebook and Twitter.

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U.S. Supreme Court mulls federal water, wetlands rules



Coastal wetlands off the Eastern Shore of Virginia. (Sarah Vogelsong / Virginia Mercury)

The U.S. Supreme Court opened its term Monday with an Idaho case that could significantly restrict the federal government’s power to enforce clean water laws and prove crucial in determining wetland protections.

The oral arguments came just months after the court’s 6-3 conservative majority limited executive authority to address climate change in a case involving federal regulation of greenhouse gases.

The clean water case, brought by an Idaho couple seeking to build a house on a plot of land they bought near Priest Lake in the state’s panhandle, provides an opportunity for the court to rein in what types of waters are subject to a provision of the Clean Water Act known as “Waters of the United States.”

The property of Michael and Chantell Sackett is across a road from wetlands that eventually drain into Priest Lake. The Environmental Protection Agency has required the couple to obtain federal permits before they build, but the couple has argued that because their property doesn’t contain any water itself, it shouldn’t be subject to Clean Water Act requirements.

Justice Brett Kavanaugh noted that the case was about much more than one couple’s building permits.

“Let’s put aside the facts of this case because this case is going to be important for wetlands throughout the country,” he told the Sacketts’ attorney, Damien Schiff of the conservative Pacific Legal Foundation.

The law doesn’t define what is considered a water of the United States subject to federal regulation, and land that is situated near and drains into a covered waterway can also be subject to regulation, which is what the EPA has argued in the Sacketts’ case.

The case is about how broad that definition can be. Monday’s arguments indicated the status quo may be too broad for the court’s conservative majority to accept.

Justice Neil Gorsuch pushed U.S. Justice Department attorney Brian Fletcher to define the distance from a waterway that land would be subject to regulation. Fletcher could not offer a distinct answer, prompting Gorsuch to wonder how property owners or potential property owners could be expected to determine what their responsibilities are under the law.

“If the federal government doesn’t know, how is the person subject to criminal time in federal prison supposed to know?” he said.

Taking part in her first oral argument as a member of the court, Justice Ketanji Brown Jackson asked what the process was for determining if a particular property was covered.

Fletcher said that property owners can receive, at no cost, an analysis from federal agencies about whether they need to seek permits.

Further, property rights are not restricted by federal permitting requirements.

“The fact that they’re covered by the act does not mean that development is prohibited, it just means that development has to be permitted,” he said.

Meaning of ‘adjacent’


Another piece of the Sacketts’ argument was that their land was not in fact adjacent to a covered water because a road separated their property from the water.

Several justices, both liberal and conservative, appeared skeptical of that argument.

Jackson responded to Schiff’s argument that Congress differentiated between land abutting covered waters and land nearby by noting that the Clean Water Act’s purpose was to preserve water quality.

“Why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s water?” she said. “Are you saying that neighboring wetlands can’t impact the quality of navigable waters?”

The EPA and the Army Corps of Engineers have long accepted that nearby land can affect waters that are covered by the Clean Water Act. That’s still true if there’s a human-made construction like a berm or a road, Fletcher said.

“For 45 years, the EPA and the Army Corps has recognized that the presence of such a barrier does not categorically strip a wetland of the act’s protections,” he said.

Even some of the court’s conservative justices seemed skeptical of the Sacketts’ argument that their land was not adjacent to covered water.

Chief Justice John Roberts made an analogy with train stations and tracks. A station does not physically touch the tracks but is considered to be adjacent to them.

Executive agencies, under presidents of both parties, have long held that neighboring — not only abutting — lands were covered, Kavanaugh told Schiff.

“Why did seven straight administrations not agree with you?” he asked.

Significant nexus

But even if a majority of justices are unpersuaded by the Sacketts’ adjacency argument, the conservatives might not miss an opportunity to narrow the regulatory authority of the Clean Water Act.

“The composition of this court is likely to go in a narrower way,” Melissa Reynolds, an attorney with Holland & Hart’s water law office, said in a Monday interview. “It’s not expanding jurisdiction and hindering private property owners moving forward — it’s kind of the opposite direction.”

In June, in one of the final decisions of its previous term, the court held that the EPA could not use the Clean Air Act to regulate greenhouse gas emissions on an industry-wide scale, dealing a blow to federal efforts to address climate change.

Under the past three presidential administrations, the working definitions of waters of the United States have shifted.

But in general, the federal government has been working under a “significant nexus” standard, holding that anything with a meaningful intersection with covered waters is subject to Clean Water Act regulation.

The court’s conservatives indicated they may like to narrow that standard.

“I imagine that most of the water flow and rainfall and snowfall in quite a large geographic area drains into the lake eventually,” Gorsuch said. “How does any reasonable person know — within maybe 100 square miles in a watershed that drains into a body of water that is a water of the United States — whether their land is adjacent?”

The Biden administration is working on a new rule to further define waters of the United States. That rule is being reviewed by the Office of Management and Budget, Fletcher said. That step is usually one of the last before a rule becomes final.

Fletcher said a final rule is likely before the end of the year, which would likely be before a decision from the court.


by Jacob Fischler, Virginia Mercury

Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: Follow Virginia Mercury on Facebook and Twitter.

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Governor Glenn Youngkin releases Virginia’s Energy Plan



On October 3, 2022, Governor Glenn Youngkin unveiled the 2022 Virginia Energy Plan in Lynchburg, Virginia. The plan focuses on an all-of-the-above approach that harnesses nuclear, natural gas, renewables, and new energy sources to satisfy the increasing energy needs of the Commonwealth. The Plan also outlines an increase in nuclear energy and an objective to make Virginia the world’s leading nuclear innovation hub.

“A growing Virginia must have reliable, affordable, and clean energy for Virginia’s families and businesses. We need to shift to realistic and dynamic plans. The 2022 Energy Plan will meet the power demands of a growing economy and ensures Virginia has that reliable, affordable, clean, and growing supply of power by embracing an all-of-the-above energy plan that includes natural gas, nuclear, renewables, and the exploration of emerging sources to satisfy the growing needs of Commonwealth residents and businesses,” said Governor Glenn Youngkin.

“Energy is a key driver of economic productivity and growth. Existing businesses are reliant on the grid to deliver energy on-demand every second of every day. Businesses considering Virginia as a state to open or relocate their businesses expect energy-ready sites and a choice of energy generation sources. All Virginians and businesses deserve access to reliable, affordable, clean energy. As we explore various pathways to managing the energy transition underway, we look forward to supporting innovative thinking across the Commonwealth to support the Governor’s goal of making Virginia the best place to live, work and raise a family,” said Secretary of Commerce and Trade Caren Merrick.

“I am thrilled that the 2022 Virginia Energy Plan recognizes Virginia’s unique nuclear advantage. Two of the nation’s largest nuclear manufacturing companies are located here in Lynchburg. They offer exciting opportunities to research and develop cutting-edge nuclear generation technologies that will create new, high-paying jobs in the Commonwealth while delivering reliable energy to Virginians. I am also glad Governor Youngkin’s plan includes actions to protect our natural resources, including farmland, rivers, and streams,” said House Commerce and Energy Chair, Delegate Kathy Byron.

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“The Plan’s strong support for an all-the-above energy approach is a meaningful step to ensure that Virginia has a reliable energy grid into the future. Virginians deserve an energy portfolio that prioritizes affordability and innovation and makes real investments in nuclear power generation,” said Republican Leader Pro Tempore, Senator Steve Newman.

“The Virginia Energy team is excited to have the opportunity to work with the Governor and his Administration on pursuing an energy plan for Virginia that explores all of the many options and challenges in transitioning existing energy supply resources to clean energy resources. Existing assets represent significant consumer investment and are a critical component of a clean energy transition in order to maintain reliability and affordability. Acknowledging all of the emerging clean energy technologies as compliments to wind, solar, and storage offers flexibility and the opportunity to advance those that align with the Virginia advantage. Stakeholder outreach has been extensive and offered various forums to facilitate feedback in developing the 2022 Virginia Energy Plan. Our team understands the hard work will begin after the Plan is released and looks forward to the next phase of planning and implementation,” said Virginia Department of Energy Director John Warren.

Read the 2022 Virginia Energy Plan here.


Virginians across the Commonwealth have come out supporting the Governor’s new Virginia Energy Plan.


“Our existing energy plan, brought about by environmental extremism, might well leave people freezing in the dark. That is the definition of failure. Governor Youngkin’s plan to emphasize clean, safe, nuclear power is a key step forward on the road to a reliable energy future for Virginia,” said Virginia House of Delegates Speaker Todd Gilbert.

“I want to thank Governor Youngkin for the release of his 2022 Virginia Energy Plan, which outlines a reliable, affordable energy future and includes several exciting opportunities for Southwest Virginia. His endorsement of small modular nuclear reactors supports a technology that can innovate and revitalize abandoned coal mines and diversify Southwest Virginia’s economy,” said House Majority Leader Terry Kilgore.

“At a time when Virginia families are facing dramatically higher energy costs, Governor Youngkin’s plan is what we need now. By adopting an ‘all of the above’ approach, and including nuclear, the Governor has crafted a plan that will fulfill Virginia’s future energy requirements for generations to come,” said Senate Republican Leader Senator Tommy Norment.

“Creating a reliable, innovative, and affordable all of the above approach energy economy is vital to create an environment for businesses to thrive. Without a strong and reliable grid and keeping costs low for industrial users of energy Virginia cannot stay competitive at the national level,” said House Appropriations Chair, Delegate Barry Knight.

“In 2020 I urged my colleagues to see that the Virginia Clean Economy Act was a bad deal for Virginians, especially those who call Southwest Virginia home. Today, I am encouraged to see the Governor’s plan emphasize the need for a diversified energy economy to benefit all regions of the Commonwealth and bring nuclear innovation to Southwest Virginia,” said Deputy Majority Leader Israel O’Quinn.

“The Governor’s Energy Plan released today prioritizes Virginians. The diversification of Virginia’s energy portfolio will strengthen the state’s economic development position while creating more affordable rates for Virginia’s families and businesses,” said Senate Republican Caucus Chair Senator Ryan McDougle.

“When the VCEA was passed, Democrats put Virginia on the same ruinous path as California, where the state pleads with customers to delay their energy needs to avoid blackouts. Governor Youngkin’s Energy Plan prioritizes an all-of-the-above energy approach that will ensure Virginia’s grid continues to meet our energy demands when and where energy is needed,” said Senate Republican Caucus Co-Chair, Senator Mark Obenshain.

“Governor Youngkin’s plan restores meaningful ratepayer protections and addresses the previous eight years of Democratic administration excesses raising costs on working families. I am excited to see a Governor addressing the dramatic rise in the cost of living for working Virginians while maintaining reliable energy and pursuing new environmentally friendly opportunities,” said Senator David Suetterlein.

“In 2020 under the previous General Assembly, Virginians lost. The path set by the Virginia Clean Economy Act places all burdens on Virginia ratepayers and no responsibility on the energy producers for the expansion of renewables. Governor Youngkin’s plan aims to right-size renewable energy policy in Virginia and turn Virginia’s energy plan into one with achievable, commonsense objectives,” said Senator Jen Kiggans.

“After the General Assembly in 2020 planned to retire many of Southwest Virginia’s power plants, I am glad to see that Governor Youngkin’s energy plan is an all-of-the-above approach that harnesses all of Virginia’s power generation resources – wind, nuclear, natural gas, and biomass. Virginia’s energy policy should be focused on securing affordable and reliable electricity for our families and businesses, and the Governor’s plan does just that,” said House Transportation Committee Chair, Delegate Terry Austin.

“The VCEA put mandates and deadlines on our energy industry without any protections for Virginians from massive increases in their electric bills and California style rolling-blackouts. It also limited the use of other 21st century energy innovation that may be on the horizon. Governor Youngkin’s ‘all of the above’ policy initiative makes a bold statement that Virginia is ready and willing to lead on 21st century energy policy. It includes a roadmap utilizing innovation to modernize our grid and infrastructure to ensure affordable, reliable, and environmentally conscious energy for the Virginians of today and for generations to come,” said House Education Committee Chair, Delegate Glenn Davis.

“Governor Youngkin just announced his new Energy Plan, and there’s a lot for everyone to like in it…,” said Delegate Sally Hudson

“I have always been a staunch advocate for the advancement of renewable energy such as solar in the General Assembly. As these developments bring much needed investment to Southside Virginia. Today’s energy plan announcement by Governor Youngkin will diversify Virginia’s energy grid and ensure that the Commonwealth continues to be good stewards of the environment without breaking the bank for taxpayers,” said House Agriculture Chesapeake and Natural Resources Committee Vice Chair, Delegate Danny Marshall.

“In 2020, Democrats’ Regional Greenhouse Gas Initiative and Virginia Clean Economy Act hastily placed an irrational and unrealistic timeline for the decommissioning of Virginia’s reliable energy sources. Those polices placed all of the burden on Virginia ratepayers and put Virginia’s economy and energy grid at risk. Governor Youngkin’s plan puts Virginia back on the path of reliable and affordable energy that meets the needs of all Virginians,” said House Republican Caucus Chair, Delegate Amanda Batten.

“This Plan encourages Virginia to adopt innovative energy technologies such as small modular nuclear reactors to ensure a stable and reliable power grid. It is vital for Virginia to move away from the required retirement of reliable forms of power generation and focus on carbon neutral efforts which provide benefits to the environment while maintaining a dependable energy grid,” said Delegate Michael Webert.


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