Herring says Youngkin can’t pull Virginia out of carbon market by executive action

An official advisory opinion from outgoing Democratic Virginia Attorney General Mark Herring says Republican Gov.-elect Glenn Youngkin cannot withdraw the state from a regional carbon market solely through executive action. 

“The Constitution of Virginia does not grant the governor the power to suspend laws, and in fact, it requires the opposite that ‘the governor shall take care that the laws be faithfully executed,’” wrote Herring in a Jan. 11 letter. 

Herring’s opinion, which was requested by Democratic Dels. Charniele Herring, D-Alexandria, and Rip Sullivan, D-Fairfax, also cites an opinion he issued in January 2014 that “the Virginia Constitution prohibits the governor from unilaterally suspending the operation of regulations that have the force of law.” 

Virginia’s participation in the Regional Greenhouse Gas Initiative, an 11-state carbon market that requires carbon-emitting power plants to purchase allowances for their emissions in quarterly auctions, has become a major political flashpoint as Gov.-elect Glenn Youngkin prepares to take office Jan. 15.

Joining Virginia to RGGI was one of Democrats’ top environmental priorities when they took control of all branches of state government in 2020. Virginia began participating in auctions at the beginning of 2021 and over the course of the year took in $228 million in revenues, which state law dictates must be divided between flood protection and low-income energy efficiency programs. 

At a December lunch held by the Hampton Roads Chamber of Commerce, however, Youngkin announced he intends to withdraw the state from RGGI, citing its costs to ratepayers and businesses. 

“It’s a bad deal for Virginians. It’s a bad deal for Virginia businesses. I promised to lower the cost of living in Virginia and this is just the beginning,” Youngkin said at the time. 

Residential customers of Dominion Energy, the state’s largest electric utility, began paying an additional $2.39 per month on their electric bills this January to cover the cost of the utility’s carbon allowances. The company had also applied to state regulators to update those costs to roughly $4.37 per month starting in September 2022 but yesterday asked to withdraw the proposal because of uncertainty over RGGI’s future. 

Youngkin’s transition team has said that as governor, he will be able to use executive action to pull Virginia out of RGGI because the state’s participation is governed by a contract agreement signed by the Department of Environmental Quality. 

Some legal experts and lawmakers, however, disputed that argument, saying Youngkin cannot use executive action to unwind state regulations put in place to govern the procurement of allowances by carbon-emitting plants in Virginia. 

Herring agreed, saying “the governor may not repeal or eliminate, through an executive order or other action, the enacted statutes and regulations pertaining to the commonwealth’s participation in the Regional Greenhouse Gas Initiative … or do away with the requirement that electricity producers hold carbon dioxide allowances that equal the amount of their carbon dioxide emissions.”

A spokesperson for Youngkin declined to comment on the opinion. A spokeswoman for incoming Republican Attorney General Jason Miyares, however, called Herring’s timing “suspicious.”

“It’s odd that an outgoing attorney general would try to influence an incoming governor. When Attorney General-elect Miyares takes office, he and his team will look at every opinion, lawsuit and investigation with a fresh perspective,” Victoria LaCivita said in a statement.

This story has been updated to include responses from Youngkin and Miyares.