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Virginia Governor Directs State to Regulate Carbon Emissions

McAuliffe’s Directive Requires State Regulation of Carbon Emissions from Power Plants

coal-fired plant in VirginiaOn May 16, 2017, Virginia Governor Terry McAuliffe issued an executive action directing the Virginia Department of Environmental Quality (“DEQ”) to draft a regulation restricting the emission of carbon dioxide from electric generating facilities. Executive Directive 11 orders DEQ to draft a regulation pursuant to Va. Code §§ 10.1-1300, et seq. that will “abate, control, or limit carbon dioxide emissions from electric power facilities.” The directive states that DEQ must propose a regulation that is “trading ready” and will allow for the exchange of carbon emissions allowances with other states.

This type of action would be a first in Virginia. While the state Air Pollution Control Board has previously enforced greenhouse gas rules promulgated under the federal law – including the Clean Air Act’s new source permitting provisions – the Commonwealth has never before attempted to promulgate carbon rules based solely on state law.

On May 12, 2017, in response to a legislative request, Attorney General Mark Herring issued an advisory opinion stating that carbon emissions constitute an “air pollutant” and thus are subject to regulation under state law. The Attorney General’s opinion noted that “the overwhelming body of scientific literature demonstrates a growing consensus among scientists” that carbon emissions “contribute to elevated global temperatures and may be harmful to the welfare of people, animals, and property.”

The Governor’s directive comes as the federal Clean Power Plan, a greenhouse gas regulation promulgated by the EPA during the Obama administration, is under legal challenge and subject to a stay by the U.S. Supreme Court. The Trump administration has also indicated that it will attempt to suspend or repeal the Clean Power Plan.

The Governor directed that the draft regulation should be presented to the State Air Pollution Control Board for consideration no later than December 31, 2017. After the regulation is proposed, it will be subject the notice and comment procedures established by Virginia’s Administrative Process Act. Executive Directive 11 followed a report and recommendation issued by a workgroup chaired by the Secretary of Natural Resources.

Please contact one of our renewable energy lawyers or regulatory attorneys should you have questions about this matter.

Commonwealth Pledges Reduced Carbon Emissions


Virginia Governor McAuliffe
(Photo credit: Wikipedia)

On June 28, Virginia Governor Terry McAuliffe signed an Executive Order intended to significantly reduce carbon emissions from Virginia’s power plants and to combat the effects of climate change in the Commonwealth. Executive Order No.57 directs Secretary of Natural Resources Molly Ward to convene a Work Group and to report back to the Governor with concrete recommendations for reducing CO2 emissions. The Executive Order directs the Secretary to provide a final report and recommendations to the Governor no later than May 31, 2017.

Governor McAuliffe noted that the power generation sector, including coal and gas-fired power plants, account for almost 30% of the total carbon emissions in the Commonwealth. Governor McAuliffe also stated that he had ample authority under Article V of the Virginia Constitution and Virginia Code Section 10.1 to mandate carbon reductions via executive order. The Executive Order directs the Secretary to consider electric rate impacts and economic development opportunities in her recommendations.

The announcement came as federal efforts to address climate change are on hold. In February, the U.S. Supreme Court halted the implementation of the EPA’s Clean Power Plan (which we covered here), a regulation that the Obama Administration hopes will drastically reduce carbon emissions from the nation’s coal and gas-fired power plants and promote new investments in renewable energy and energy efficiency resources.  The Governor said that even though EPA’s Clean Power Plan has been stayed by the Court, Virginia cannot afford to delay taking action on climate change.

The press release from the Governor’s Office and full text of the Executive Order is Available here.