Appalachian Voices sues state over release of carbon market document

By: - August 4, 2022 2:52 pm
Potomac River Generating Station/Mirant power plant

Coal stacks at the now-closed Potomac River Generating Station in Alexandria, Va. (Sarah Vogelsong/Virginia Mercury)

Nonprofit Appalachian Voices is suing Virginia to force the release of a document that allegedly contains an opinion from the attorney general’s office that Virginia Gov. Glenn Youngkin cannot pull the state out of a regional carbon market. 

The suit, filed in Charlottesville Circuit Court, claims that the Virginia Air Pollution Control Board, Virginia Department of Environmental Quality and Office of the Attorney General “have unlawfully withheld a public record … by erroneously relying on a statutory exclusion that does not apply.” 

The Southern Environmental Law Center is representing Appalachian Voices, a regional environmental and economic development nonprofit, as well as its Virginia policy director, Peter Anderson.  

The case stems from a comment made by air board member Hope Cupit at an April meeting that she “got an opinion from the attorney general’s office back in March saying that it’s not the responsibility of the board” to remove Virginia from the Regional Greenhouse Gas Initiative but “that it’s the responsibility of the General Assembly.” 

Even before his inauguration, Youngkin pledged to pull Virginia out of RGGI, a multistate agreement that requires power producers to pay for each ton of carbon dioxide they emit in quarterly auctions. 

Joining RGGI was a long-time goal for Virginia Democrats, who succeeded in passing legislation authorizing the state’s participation in 2020 as part of sweeping efforts to combat climate change. 

Under the 2020 law, half of all RGGI proceeds must go toward low-income energy efficiency programs, and 45% must go to the Community Flood Preparedness Fund, a program that provides assistance to communities statewide that are facing recurrent flooding problems.

In 2021, Virginia took in $228 million in RGGI auction proceeds. Roughly three-quarters of the state’s emissions come from plants operated by Virginia’s regulated electric utilities, which are allowed by law to pass on their RGGI costs to ratepayers. 

Dominion’s average residential customer paid $2.39 extra per month to cover RGGI costs, although the utility recently asked state regulators to halt the charge and instead fold it into base rates.

Youngkin has criticized RGGI as an ineffective carbon tax that is “a bad deal for Virginians” and has tried multiple different strategies to exit the regional market, including legislation, budget language and regulatory overhaul. 

Democrats in the Senate, where the party holds a thin two-vote margin, have struck down his legislative attempts, but the governor’s regulatory efforts are still ongoing. In an inauguration day executive order, Youngkin directed the Department of Environment Quality to develop regulations to roll back the state’s framework for RGGI participation. Those regulations require approval from the seven-member citizen State Air Pollution Control Board and are expected to come before it later this summer. 

Environmental groups including the Southern Environmental Law Center have consistently argued that Youngkin lacks the power to withdraw Virginia from RGGI because the state’s participation was authorized by the General Assembly. 

Consequently, Appalachian Voices argued in a memo filed along with its suit Thursday, “the existence of a written opinion by the commonwealth’s own counsel that such action by the board would violate the law is a matter of great consequence to Virginia’s economic and environmental future.” 

In its petition, Appalachian Voices and Anderson say they submitted requests under Virginia’s Freedom of Information Act for copies of the opinion Cupit said she had received from the attorney general’s office. 

Both DEQ and the attorney general’s office said they had a record but refused to release it on the grounds that the state Freedom of Information Act exempts it from mandatory disclosure because it’s protected by attorney-client privilege. 

But Appalachian Voices says that “the narrow exclusion for information protected by the attorney-client privilege does not apply where, as here, the client has publicly disclosed the information.” 

“By voluntarily sharing the information that she received from counsel with parties outside the attorney-client relationship, Ms. Cupit waived any attorney-client privilege that otherwise protected that information,” the group wrote in its Thursday memo. 

Victoria LaCivita, a spokesperson for the Office of the Attorney General, said the office “can’t comment on pending litigation.” 

State law requires a hearing to be held within seven days.

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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists.