Association of Energy Conservation Professionals v. Virginia State Air Pollution Control Board

A Virginia Circuit Court nullified the Virginia State Air Pollution Control Board’s repeal of a regulation that implemented Virginia’s participation in the Regional Greenhouse Gas Initiative (RGGI), a regional cap-and-trade program to reduce carbon dioxide emissions from the power sector. A 2020 law required Virginia to participate in a market-based trading program consistent with RGGI and directed the Department of Environmental Quality to incorporate the 2020 law’s provisions into a regulation to bring Virginia into RGGI. The court found that an association of weatherization professionals had standing to challenge the repeal because the association’s members would be injured by being deprived of funding through a Weatherization Deferral Repair program funded by RGGI revenues, an injury that was fairly traceable to the repeal and redressable by the court. On the merits, the court ruled that neither the 2020 law nor any other law gave the respondents authority to repeal the regulation.

In a lawsuit challenging the Virginia State Air Pollution Control Board’s repeal of regulations regarding Virginia’s participation in the Regional Greenhouse Gas Initiative (RGGI), a Virginia Circuit Court in Fairfax County concluded that the only Fairfax County-based petitioner did not have constitutional or statutory standing and that the County therefore was not the proper venue for the suit. RGGI is a multistate market-based program to reduce greenhouse gas emissions from power plants. The court found that Faith Alliance for Climate Solutions, the Fairfax County-based petitioner, and two other petitioners lacked constitutional standing because they asserted only “generalized grievances concerning a world-wide issue” (i.e., climate change, air pollution, and a transition to renewable energy). Similarly, the court found that the three petitioners did not satisfy the “affected by” standard for statutory standing under the Virginia Administrative Procedures Act. The court transferred the appeal to the Circuit Court of Floyd County, for a determination of whether a fourth petitioner had standing. That petitioner, the Association of Energy Conservation Professionals, alleged that the RGGI repeal would disrupt its members’ businesses and impede weatherization projects funded by RGGI.

Four petitioners challenged a Virginia State Air Pollution Control Board (Board) rule that withdrew Virginia from the Regional Greenhouse Gas Initiative (RGGI), a regional cap-and-trade program that reduces carbon dioxide emissions from power plants. The petitioners were a trade association for energy conservation professionals, a nonprofit corporation with a mission “to reduce reliance on fossil fuels and transition to a clean energy economy in a way that is beneficial and fair to Appalachian communities,” “a not-for-profit corporation comprised of congregations and persons involved in faith communities across Virginia” with a mission to “advocate for solutions to climate change with a key focus on environmental and social justice,” and a nonprofit corporation composed of “over 200 faith communities and over 2,800 people of faith” whose mission includes “develop[ing] local solutions to the climate crisis by sounding an ethical and spiritual call to address climate change.” The petitioners asserted that the Board and other respondents exceeded their delegated authority under the “2020 RGGI Act” (the Clean Energy and Community Flood Preparedness Act), which the petitioners alleged required Virginia’s participation in RGGI. In addition, they argued that the respondents exceeded their statutory authority and contravened state law by justifying the withdrawal from RGGI as necessary to reduce utility costs. They also contended that the respondents acted without sufficient evidentiary support in violation of the Virginia Administrative Process Act.