State officials are refusing to release a document that purportedly undercuts Gov. Glenn Youngkin’s desire to remove Virginia from a greenhouse gas reduction program.
Youngkin wants the Virginia State Air Pollution Control Board to consider an emergency regulation that would remove Virginia from the Regional Greenhouse Gas Initiative, a multi-state program in which energy producers charge their customers to cover the costs of reducing pollution.
But a member of the air board said at the panel’s April 20 meeting that the attorney general’s office believes only the General Assembly can remove Virginia from the program.
Hope Cupit said she’d received an “opinion” in March from the attorney general’s office. But she and the attorney general’s office declined to release it. A staffer with the Virginia Department of Environmental Quality said someone there had the document “at one point.”
DEQ’s Natalie Womack declined to explain how someone at DEQ had the document “at one point” but supposedly no longer has it.
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In any event, the mysterious document – which would undercut Youngkin’s goal – remains secret.
After he was elected, Youngkin gave a speech in December saying he would remove Virginia from the greenhouse program, known as RGGI, by executive action. But the General Assembly passed a law in 2020 requiring Virginia to join the program, and a governor doesn’t have the power to overturn a law.
Under RGGI, energy producers in a number of states trade emission reductions for credits, or buy credits to emit carbon dioxide past a cap. The states in the program are Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Virginia.
Youngkin backed off his plan, and instead issued an executive order calling on the air board to consider a regulation removing Virginia from RGGI. Environmental groups say even that would be illegal because a regulatory board can’t overturn a state law.
Cupit, the air board member, asked Department of Environmental Quality Director Mike Rolband at the April 20 board meeting about the administration’s plan for an emergency regulation for the air board to consider. (Air board members are appointed by the governor and DEQ acts as staff to the air board).
DEQ staff in March issued a report – as requested by Youngkin’s executive order – about how the agency believes Virginia could remove itself from the program.
Rolband told her the process was “complicated” and is being “vetted by a lot of different people.”
He said the emergency regulation would need review and approval by the air board, and that would begin the process of removing the state from RGGI, which DEQ’s report said was an “emergency” because of the costs. Rolband said the attorney general’s office would review everything first.
That’s when Cupit introduced an issue that seemed to surprise Rolband.
“I did reach out to the attorney general’s office and was told that this is not an action of the board, it actually is an action of the General Assembly,” Cupit said at the meeting.
She added: “I got an opinion from the attorney general’s office back in March saying that it’s not the responsibility of the board, that it’s the responsibility of the General Assembly.”
Rolband asked Cupit to provide him with a copy of it, and she said she would.
The Richmond Times-Dispatch asked Cupit after the meeting for a copy of what the attorney general sent her; she said she’d check to see if she could release it, but never responded.
Victoria LaCivita, a spokeswoman for the attorney general, said by email for this story that there had been “no official or unofficial AG’s opinion on RGGI issued by this administration.”
But pressed as to whether the attorney general’s office provided Cupit with anything in writing, a special counsel in the office, Stephanie Hamlett, said there was a document. She said the attorney general declined to release it, and she cited a discretionary FOIA exemption for written advice of legal counsel.
Womack, the DEQ staffer, declined to explain the circumstances under which someone at DEQ had the document “at one point” but no longer did.
Womack also responded this week on behalf of Cupit, the air board member, saying Cupit was opting not to release the document. Womack cited the discretionary FOIA exemption for legal advice.
Nothing in the Freedom of Information Act stops the attorney general’s office or Cupit from releasing the document, but FOIA allows them to withhold it, in their discretion.
So for now, the mystery of the secret air board document remains unsolved.
Under RGGI the revenue Virginia gets is directed to programs that help low-income people reduce energy usage – thereby lowering their cost of electricity – and for programs combating sea level rise in coastal areas and inland flooding across the state.
Under the initial RGGI cost recovery request from Dominion Energy, the state’s largest electric utility, a typical customer’s bill increased $2.39 a month because of the program.
