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

On 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.