State says lawsuit over carbon cap-and-invest plan should be dismissed … because of $71 in court fees 

By: - October 30, 2020 12:02 am

The International Paper mill in Franklin, Va. (Sarah Vogelsong/Virginia Mercury)

Virginia is asking the Richmond Circuit Court to dismiss a lawsuit by the Virginia Manufacturers Association that aims to block the state’s participation in a regional carbon cap-and-invest market because it says VMA didn’t pay its court fees in time. 

“The association did not, within 30 days after filing its notice of appeal, pay all fees or take all steps necessary to cause its petition to be served,” wrote Senior Assistant Attorney General Paul Kugelman, who is representing the Virginia Department of Environmental Quality, the State Air Pollution Control Board and DEQ Director David Paylor, in a Wednesday filing. “Consequently, the association’s petition for appeal should be dismissed with prejudice and denied.”

Suits that are dismissed with prejudice cannot be refiled and are considered permanently closed.

The sticking point, according to the state, is $71 that a paralegal for the firm representing the manufacturers association did not pay until Oct. 5, three days after the 30-day window allowed by the state for appeals of new regulations. 

The Virginia Administrative Process Act says that such appeals can be made “by an appropriate and timely court action … in the manner provided by the Rules of Supreme Court of Virginia.” Those rules specify that a petition for appeal must be filed within 30 days of a petitioner’s notice of appeal, along with “the payment of all fees.”

But while the VMA filed its petition on Oct. 2, within 30 days of its Sept. 2 notice that it planned to appeal, it didn’t pay $71 of its total $91 worth of filing fees until Oct. 5. 

Brett Vassey, president and CEO of the manufacturers association, said the organization’s legal counsel paid $20 in fees “per the instruction of the Court” on Oct. 2 and that “the Court later requested an additional $71 fee payment.” 

A letter from the Williams Mullen paralegal who paid the fees, which is included by the state in its dismissal request, states that the paralegal “had gotten the amount of the filing fee submitted from someone at the court so the error was unintentional.” 

Vassey called the state’s argument “a distraction.”

“We were hoping there would be more substance in the AG’s response to our petition considering the gravity of our arguments and the importance to the commonwealth,” he said in an email. “The motion to dismiss spent more time addressing court filing fees than a $160+ million annual tax on electricity that bypasses the appropriations process and regulation that violated the APA.” 

The Virginia Manufacturers Association has contended in its suit that the state followed an incorrect process that bypassed administrative requirements and timelines for input and review in revising its carbon trading rule. 

The General Assembly during the 2020 regular session ordered the regulation’s revision in a law that allows Virginia to participate in the Regional Greenhouse Gas Initiative, a group of 10 Mid-Atlantic and New England States that operate carbon allowance auctions as a means to reduce emissions of the climate change-causing gas. 

VMA, many of whose members will be required to purchase allowances once Virginia begins participating in RGGI auctions in 2021, has said that the revisions went beyond what the new law permitted and “wrongfully broadened the statutory exemption” from Administrative Process Act rules granted by the General Assembly to DEQ. 

Three environmental and advocacy groups -— Virginia Interfaith Power and Light, Wetlands Watch and Appalachian Voices — have also asked to participate in the case in support the regulations developed by DEQ, pointing to several years of public involvement in the development of carbon regulations prior to the law enacted by the General Assembly in 2020.

“Rather than accept the fact that the Commonwealth’s Emissions Reduction Program is the law of the land, the Virginia Manufacturers Association manufactures a series of claims all premised on the notion that the industry group deserves more process,” Nate Benforado of the Southern Environmental Law Center wrote in a memorandum to the court on behalf of the groups.

“This last-ditch effort to derail the program directly contradicts the General Assembly’s straightforward, unequivocal legislative instruction that there should be no more process for this program. While the Virginia Manufacturers Association may be unhappy with the outcome, after years of work, public input, and now a specific statute, there is no procedural deficiency.”

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Sarah Vogelsong
Sarah Vogelsong

Sarah is the Mercury's environment and energy reporter, covering everything from utility regulation to sea level rise. Originally from McLean, she has spent over a decade in journalism and academic publishing and previously worked as a staff reporter for Chesapeake Bay Journal, the Progress-Index and the Caroline Progress. She is the recipient of a first place award for explanatory reporting from the Society of Environmental Journalists and has twice been honored by the Virginia Press Association as "Best in Show" for online writing. She was chosen for the 2020 cohort of the Columbia Energy Journalism Initiative and is a graduate of the College of William and Mary. Contact her at [email protected]