There are many reasons that the Virginia Air Quality Board (the "Board") can and should act to withdraw Virginia from the Regional Greenhouse Gas Initiative (the "RGGI). They include the following:

The Board Has the Authority to Withdraw. The Clean Energy and Community Flood Preparedness Act of 2020 (the "2020 Act") explicitly states in relevant part that the executive is "authorized to establish, implement, and manage an [emission allowance] auction program...consistent with the RGGI program...." (Title 10.1, Chapter 13, Section 10.1-1330.B., Code of Virginia) (emphasis added)

          When interpreting a statute, or any legal document, the words are to be understood in their ordinary everyday meaning unless the context clearly requires some other interpretation. (Se, e.g., James Kent, Commentaries on American Law 432 (1826): "The words of a statute are to be taken in their natural and ordinary signification and import....")

          The 2020 Act "authorizes" officials in the executive branch of Virginia's government to establish a RGGI auction program. The ordinary everyday meaning of "authorize" is in no doubt. It means to allow or empower or permit a party to act. It absolutely does not mean that the authorized party is required to act. Inherent in the concept of authority is the freedom to act or not to act in the first instance and, if action is taken, the freedom to rescind the action taken when and if the authorized party decides to do so. The Board is clearly empowered to decide to withdraw Virginia from the RGGI if it elects to do so.

There Is No Evidence That RGGI Has Materially Reduced Carbon Emissions, Or Can. The stated purpose, and only justification, for the RGGI is that it reduces meaningfully anthropogenic emissions of carbon dioxide that contribute significantly to global warming that, in turn, causes materially adverse weather events that cannot otherwise be mitigated more cost effectively.

          This line of reasoning that RGGI proponents rely on to justify its imposition has no basis in fact or sound scientific analysis. RGGI has not reduced carbon dioxide emissions to any meaningful extent in the Northeast, despite years of costly operation. In 2022, world-wide carbon emissions reached an all-time high, despite the expenditure of hundreds of Billions of dollars on so-called green initiatives during the past decade. 

          Unilateral efforts by Virginia or the Northeast or the United States as a whole to cut carbon emission from but one sector of the economy will have no practical effect, as any such reductions will be more than offset by the ever-incre4asing emission of China and other nations that are rapidly expanding their use of coal, oil, and natural gas. Anthropogenic factors that contribute to global warming are, by definition, factors that can only be addressed effectively on a global basis. And even such a global effort would have to address the countless variables, including the multitude of significant non-anthropogenic drivers, that clearly impact climate variability and clearly unsettle the field of climate science. (See, Steven E. Koonin, Unsettled, (BenBella Books, Inc.))

          In the face of unsettled science, and with no hope of any meaningful impact on the problem that RGGI was created to mitigate, any decision to continue Virginia's participation in the RGGI auction program would clearly represent arbitrary and capricious action by the Virginia regulators who are clearly authorized to withdraw the Commonwealth from the program.

The RGGI Could Well Be Unconstitutional. The main purpose of those who framed the United States Constitution was to strengthen the powers of the national government so that it could effectively manage foreign affairs, and affairs among the several states, in a coordinated manner to protect the interests of the nation as a whole, putting an end to the dysfunctional free-lancing by states that characterized government under the Articles of Confederation. Several provisions in the U.S. Constitution clearly reveal this central purpose, including Article I, Section 10, Clause 3:

                    No state shall, without the consent of Congress, any duty of tonnage,

                    keep troops, or ships of war in time of peace, enter into any agreement

                    or compact with another state, or with a foreign power, or engage in war....

                    (emphasis added)

          The RGGI states have not received, or even sought, congressional consent for their undertaking. They argue that certain technical terms distinguish the RGGI from an "agreement or compact" requiring congressional consent. Critics are not convinced, and litigation challenging the constitutionality of the RGGI erupts from time to time. (See, e.g., Bowfin Keycon Holdings, LLC, et al. v. Pennsylvania Department of Environmental Protection).

          Each member of the Board has sworn an oath to uphold the Constitution of the United States and the Constitution of the Commonwealth of Virginia "faithfully...and to the best of my ability." (Virginia constitution Article II, Section 7) In light of the constitutional cloud that hangs over the RGGI, the only course of action clearly open to the Board members is to act to withdraw Virginia.

The RGGI Tax On Energy Usage Could Violate the Virginia Constitution. The RGGI program, though sometimes referred to as a cap-and-trade program, is in essence the same as a tax on carbon dioxide emissions paid by power producers and passed along to their customers. 

          The Virginia Constitution states, in relevant part, that "No other or greater amount of tax or revenues shall, at any time, be levied than may be required for the necessary expenses of government." (Virginia Constitution Article X, Section 8) (emphasis added) The Governor has, as a part of the general budget process, proposed transparent and accountable funding for project expenditures receiving RGGI tax funds. Under these circumstances, the continuation of the RGGI tax is unnecessary. Indeed, withdrawal is clearly required by the Virginia Constitution.

Utility Law Requires Withdrawal. Under the RGGI, electric power producers have to participate in periodic auctions to purchase allowances for every ton of carbon dioxide that their plants emit. The power producers recover their auction costs from their wholesale and retail customers by raising the rates paid by those customers. 

          Federal law requires that wholesale electric rates be "just and reasonable." (16 U.S. Code Section 824d(a)) Virginia law also requires that all electric rates be "just and reasonable." (Title 56, Chapter 10, Section 56-235.2 Code of Virginia)

          For electric rates to be approved as just and reasonable, federal and state utility regulators have always required that the power producer costs included in those rates must have been reasonably incurred to produce and deliver the electric power. It cannot possibly be just and reasonable to add a cost to electric rates that contributes nothing to power production, and which does not even reduce to any meaningful extent the carbon dioxide emissions that provide the rationale for the RGGI auction program. 

Conclusion. For the reasons stated, the Board can, and most assuredly should, act to withdraw Virginia from the RGGI program.