A school bus in Richmond. (Scott Elmquist/ Style Weekly)

When the General Assembly reconvenes for its final day of the 2020 session Thursday, it may take up an 11th-hour proposal from Democratic Sen. Louise Lucas of Portsmouth that would smooth the path for Dominion Energy to establish a program that could put up to 1,250 electric school buses on Virginia’s roads by 2025 at the expense of utility ratepayers.

House Clerk Suzette Denslow said in an email that “it is possible that further action” on the legislation, SB 1096, “could occur on Thursday.”

The statement follows assurances over the weekend by House Majority Leader Charniele Herring that the chambers would only be considering the budget and pending judicial appointments on Thursday.

On the official legislative calendar, Saturday was designated sine die, the final day of the session. But with several dozen bills, including the budget, still tied up in negotiations between the House and Senate late Saturday night, lawmakers agreed — as they often have in recent years — to change the legislative rules to push back the deadline.

As the House prepared to vote on the rules amendment that would let the chambers complete their work, Minority Leader Todd Gilbert of Shenandoah sought to clarify the terms of the agreement.

“It’s my understanding … that the resolution will simply allow for conference reports to be concluded by 6 p.m. tomorrow along with the budget bill and that it’s the delegate’s intention or the body’s intention that we would essentially leave that Thursday 11:59 p.m. [deadline] simply for voting on the budget bill. Is that understanding correct?” he asked Herring.

Herring responded that while the body also planned to take up its remaining judicial appointments, “That is my understanding.”

Two visions for the electric school bus program

The electric school bus bill that could be taken up Thursday is the third such measure to make it to the chamber floor this year. The other two — House Bill 75 from Del. Kaye Kory, D-Fairfax, and Senate Bill 988 from Lucas — failed to win passage.

All three were put forward in response to a plan announced in late August by Dominion to roll out a program to phase out diesel buses, which are heavy carbon emitters, in favor of more expensive but less polluting electric buses. 

As alarm over climate change rises, school bus conversions are increasingly being embraced by states looking to decrease their carbon footprints. This July, the California Energy Commission pledged $70 million for 200 new electric school buses for districts around the state. And plans are also afoot in Illinois, Indiana, New York and Massachusetts.

Dominion’s electric school bus program has similarities to a pilot that energy company Con Edison began exploring in New York in 2018, although the Virginia utility’s plans are far grander, aimed at creating what Dominion CEO and president Tom Farrell touted as “the largest electric school bus program in the nation” in an investors’ call Feb. 11.

On the same call, Farrell told investors that under “pending legislation” Dominion could replace 1,500 school buses by 2025 in an estimated $400 million capital investment and that “ultimately we would replace all 13,000 diesel school buses in our Virginia service territory.” 

Under Dominion’s plans, utility ratepayers would pick up the extra costs school districts would incur in purchasing electric buses rather than diesel ones, although the utility said in its initial announcement that customer prices would not change. In return, Dominion would be able to use the bus batteries as energy storage resources that it could draw from when demand was high and the buses weren’t being used. In January, the utility selected the 16 school districts that will receive the first 50 buses.

Legislation isn’t, strictly speaking, necessary for Dominion to carry out such a program. In Virginia, the State Corporation Commission is charged with reviewing utility activities, and Dominion frequently petitions regulators there for permission to roll out new projects.

“The company can apply, and they’ve applied for other pilot programs,” said Ken Schrad, director of the SCC’s Division of Information Resources.

But legislation can help smooth the path for a program’s approval by declaring it “in the public interest” or directing that its costs be considered “reasonable and prudent,” factors the SCC must otherwise evaluate independently. And, by expressing the wishes of the General Assembly, it can also ensure that certain components of the program’s design are more likely to get regulators’ stamp of approval.

It was along such lines that both Lucas’ SB 988 and Kory’s HB 75 were designed. But the bills also had marked differences.

Lucas’ proposal would have given Dominion a broad mandate to establish its electric school bus program and allowed the utility to recover its costs through a rate adjustment clause, a rider tacked onto a customer bill that pays for a specific initiative. 

Kory’s, by contrast, was more restrictive. It would have imposed specific cost and scope caps on the program — no more than 50 buses and $13.5 million in costs by 2021, and no more than 1,000 buses and $54 million in costs over the next five years — while also instituting an SCC review of the program and ordering that costs be recovered through base utility rates.

Both proposals won support in their own chamber. But when it came time for the House and Senate to decide on what to move forward with, delegates and senators deadlocked. Lucas’ bill was voted down twice in the House, while Kory’s never made it through the conference committee process.

“Essentially there was a major disagreement, and unfortunately the entire pilot program failed due to what I would call political infighting,” Kory said. “So now there is no pilot program, at least [one] that is supported by the legislature.”

The last bill of the session

Due to a last-minute Senate vote, however, one electric school bus bill does remain alive: Lucas’ SB 1096.

The last Senate bill to be put forward this session, SB 1096 is a duplicate of the senator’s earlier proposal. Introduced in the Senate on March 5, two days before the session was scheduled to end and well beyond the Jan. 17 deadline for legislation to be filed, the bill initially caused some confusion among senators, but they signed off on it after Lucas explained that she needed to reintroduce it because the House, in her words, had voted the wrong way. 

To get the bill through the House of Delegates, an abrupt meeting of the chamber’s Labor and Commerce committee was called Saturday. The notice was so short that staff didn’t have time to figure out how to turn the microphones on.

Del. Lee Ware, R-Powhatan, wondered if the chamber’s rules even allowed a bill to be heard in committee so late in the session.

“I do not know,” said Chairwoman Jeion Ward, D-Hampton. “I think we are in uncharted territory.”

But, after a few moments’ consultation with legislative staffers, Ward determined a vote was in order and a substitute version of the bill that aligned with Kory’s version moved to the floor.

Denslow, the House clerk, told the Mercury that the bill had been able to move forward thanks to a provision of the House and Senate rules that allows lawmakers to sidestep otherwise-binding restrictions when a bill or joint resolution has been put forward by “unanimous consent” — which SB 1096 was.

“It has generally been the practice of the General Assembly in applying its procedural resolutions that any committee action and floor action deadlines, like in Rules 17 and 21, do not apply to bills introduced with unanimous consent,” said Jake Rubenstein, a spokesperson for House Speaker Eileen Filler-Corn, D-Farifax.

Environmental and watchdog groups including Clean Virginia and the Virginia Conservation Network, however, have sought to block the legislation from being passed in the final hours of the session on both policy and procedural grounds.

“After months of discussion and vetting, substantial changes were made at the last minute, after the bill had been defeated twice,” said Brennan Gilmore, executive director of Clean Virginia, a group founded by Charlottesville millionaire Michael Bills to counter Dominion’s influence in state politics, in a statement. “There has been a clear attempt to rush this bill through to avoid scrutiny of the substantial impact on ratepayers and the precedent of monopoly overreach.”

Kory said that if SB 1096 were brought to a vote Thursday, she would not support it because of its lack of reporting requirements and cost caps and the rider mechanism it uses to allow the utility to recover its costs (usually with a profit).

“I’m extremely disappointed that we were not able to make progress on this this session,” she said.

Lucas did not respond to requests for comment.

Mercury reporter Ned Oliver contributed to this story.