RICHMOND, Va. (Mar 28, 2016) – On Friday, Virginia Governor Terry McAuliffe (D) vetoed a bill that would have taken a small, but important, first step in setting the foundation to reject federal some EPA rules and regulations in practice.
House Bill 2 (HB2) would have required the Virginia Department of Environmental Quality (DEQ) to prepare an extensive report highlighting the impact of any plan to comply with EPA “Clean Power Plan” emission requirements, and to get approval from the General Assembly before implementing it. The legislation included a long list of factors the report must address, including the impact on the state power grid, the effect on consumer prices and the cost of adopting the measures.
The state legislature would have then been required to vote whether or not to approve the plan based on the information in the report. Under the proposed law, implementation of any measures to comply with EPA Clean Power Plan mandates would have been subject to legislative approval.
The full Senate passed HB2 by a vote of 21-19. The House approved the measure by a vote of 64-34.
A similar bill, SB21, passed by the same vote totals, and was vetoed as well. In his veto message for SB21, McAuliffe claimed the bill violated a state constitutional provision requiring separation of powers.
“The interjection of required legislative approval into the Clean Power Plan process is an impermissible breach of Virginia’s constitutional separation of powers. Federal law provides that it falls to the Governor to submit required plans and submissions under the Clean Air Act, including plans to comply with the Clean Power Plan. The Governor is authorized to delegate that authority to the appropriate state environmental agencies. In Virginia, that authority has been delegated to the Director of the Department of Environmental Quality. This process rests squarely in the executive branch of state government.”
But the governor ignored the second part of the constitutional provision in his remarks:
“Administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe.”
While the Federal Clean Air Act may have directed the governor to submit required plans, the state legislature created the Virginia Department of Environmental Quality in 1993. The state constitution clearly delegates the legislature the authority to define the duties and authority of administrative agencies it creates. The Federal Clean Air Act cannot reassign state powers delegated by the state constitution. Therefore, the state legislature has every right oversee and approve actions of the DEQ.
McAuliffe’s convoluted state constitutional reasoning was really nothing more than a smoke screen. As the Alexandria News reported, the governor enthusiastically supports the federal Clean Power Act as a necessary response to climate change. His veto message was not a principled constitutional stand, but mere political expediency.
Keeping in line with his federal supremacist and centralizing tendencies, McAullife also vetoed a bill that would have rejected Common Core standards.
While signing HB2 or SB21 into law would not have guaranteed the state would reject compliance with these EPA mandates, it would have set the foundation to do so. It would have also brought the entire process into the public spotlight, allowing Virginia residents to have input into it.
As it currently stands, the DEQ and the EPA work behind the scenes to adopt such plans without any public or legislative input at all. The DEQ acts, in practice, like a part of the federal government. SB21could have reasserted some state authority over the DEQ and the entire process.
With the federal courts putting a “pause” on federal implementation of some of the Clean Power Plan, HB2 and SB21 represented a good first step toward fully blocking unconstitutional EPA Clean Power Plan mandates. It would have put the process back in the hands of the state, thus diminishing the power of the federal agency. The legislation also set the stage for more aggressive action such as refusing cooperation with the enforcement of EPA rules and regulations.
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