Gov. Ralph Northam (Ned Oliver/Virginia Mercury - Dec. 11, 2018)

Gov. Ralph Northam’s administration will not veto GOP-inserted budget language that thwarts Virginia’s plans to join a network of carbon-trading states, throwing a wrench into a regulation developed over nearly two years and approved by a state board last month.

In a statement announcing his approval of the state budget Thursday, Northam, a Democrat, said he was “extremely disappointed that the General Assembly included several provisions in the budget that will harm Virginians” but did not offer an explanation for failing to exercise the veto, which proponents of the rule to cap and cut carbon emissions from fossil-fuel fired power plants had repeatedly urged.

“This budget restricts the commonwealth’s ability to participate in the Regional Greenhouse Gas Initiative (RGGI) — a critical avenue for reducing carbon emissions in the commonwealth and addressing the negative effects of climate change, which is impacting the health and safety of people who live, work, and vacation in our great state,” Northam said.

“I am directing the Department of Environmental Quality to identify ways to implement the regulation and achieve our pollution reduction goals.”

How that would work was not immediately clear. The DEQ did not immediately respond to questions on the decision.

Asked why the governor didn’t veto the RGGI item, Northam’s spokeswoman, Alena Yarmosky, said the administration saw no need for “costly, drawn-out litigation.”

Yarmosky said a “speedier remedy” is to elect Democrats in the state House and Senate races this fall.

“This language will not restrict the governor’s budget development this fall and these measures will be addressed in his introduced budget later this year,” she said.

Power plants that will be covered under Virginia’s carbon regulation, which was approved by the State Air Pollution Control Board last month but may be hamstrung by GOP-inserted budget language. (Virginia Department of Environmental Quality presentation, October 2018)

Environmental groups, which were big supporters of his 2017 campaign, were also “extremely disappointed,” but mostly with Northam, and not for the first time.

“Virginians elected Northam, in part, because he promised to take serious climate action,” said Mike Town, executive director of the Virginia League of Conservation Voters. “Today, he failed to live up to that promise.”

Walton Shepherd, Virginia policy director for the Natural Resources Defense Council, called the non veto a “disastrous retreat” that further undermined the governor’s ability to lead.

“Gov. Northam is showing his subservience to big polluters and climate deniers,” Shepherd said. “He doesn’t understand, or care about, the growing dangers Virginians face from climate change.”

The budget item inserted by Republicans says “no expenditures from the general, special, or other nongeneral fund sources from any appropriation by the General Assembly shall be used to support membership or participation in the Regional Greenhouse Gas Initiative until such time as the General Assembly has approved such membership,” adding that no RGGI auction proceeds “be used to supplement any appropriation in this act without express General Assembly approval.”

Republicans “put partisan talking points over the health and safety of Virginia’s most vulnerable citizens,” said Harrison Wallace, Virginia director of the Chesapeake Climate Action Network Action Fund.

“We know that climate denial is not the majority opinion of Virginians and we believe that climate will be on the ballot in November,” Wallace said, noting that “more than 15,000 Virginians submitted comments in support of this rule.”

In a statement, House Speaker Kirk Cox, R-Colonial Heights, crowed about the governor “recognizing the constitutional authority of the General Assembly to set conditions and restrictions on appropriations and the limitations on his authority to veto those provisions.”

It was a never a secret that trying to link to RGGI through a regulation by the State Air Pollution Control Board was an end-run around the legislature, with Attorney General Mark Herring providing an opinion that established the legal authority to do so, though many Republicans weren’t convinced.

“I hope the governor’s deference today will make future governors think twice before attempting to trespass on legislative prerogatives,” Cox said.

Northam’s announcement came less than three hours after his Democratic predecessor, Terry McAuliffe, who launched the RGGI process, tweeted that Republican efforts to undue the carbon-trading plan “must be stopped.”

 

A legal memo submitted to the administration by lawyers from the Natural Resources Defense Council in an attempt to buttress Northam’s authority to veto the item says the budget language was “a distinct and severable” part of the budget bill, “unconnected to any appropriations provisions,” that could be lawfully vetoed.

The budget item also constitutes “a general law that the General Assembly tried but failed to enact through the legislative process,” the legal memo says, which “raises valid separation of powers questions and is a potential violation of Virginia’s single-object rule” under the state Constitution.

The Constitution gives the governor the power to “veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object.”

And, the memo argues, the General Assembly failed to make the budget item veto proof by tying it to funding in the rest of the budget, as it did in 2016 when it conditioned more than $18 million in funding for the Department of Environmental Quality’s air division on the agency abiding by a prohibition on implementing the now-defunct federal Clean Power Plan.

“The General Assembly could have conditioned an appropriation (or perhaps the entire budget) on this provision, but it did not do so,” the memo says.

There have been more than 40 valid line-item vetoes over the past decade by Virginia governors, including a similar action by Gov. Bob McDonnell, who struck down an item prohibiting transportation spending in 2012, the lawyers argued.

“Although members of the General Assembly should never have inserted this provision into the budget, the governor had the opportunity to strike it and fight for this program, but opted not to,” said Nate Benforado, an attorney with the Southern Environmental Law Center in Charlottesville. “If we are ever going to make progress on climate change, we need to start now. Elected officials across Virginia must come together on climate solutions. The health of our citizens and the future of the next generation are not partisan issues.”

This is a breaking news post. Check back for additional updates.

 

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Robert Zullo
Robert has been winning and losing awards as a reporter and editor for 13 years at weekly and daily newspapers, beginning at Worrall Community Newspapers in Union, N.J., where he was a staff writer and managing editor. He spent five years in south Louisiana covering hurricanes, oil spills and Good Friday crawfish boils as a reporter and city editor for the The Courier and the Daily Comet newspapers in Houma and Thibodaux. He covered Richmond city hall for the Richmond Times-Dispatch from 2012 to 2013 and worked as a general assignment and city hall reporter for the Pittsburgh Post-Gazette from 2013 to 2016. He returned to Richmond in 2016 to cover energy, environment and transportation for the Richmond Times-Dispatch. He grew up in Miami, Fla., and central New Jersey. A former waiter, armored car guard and appliance deliveryman, he is a graduate of the College of William and Mary. Contact him at [email protected]