Environmental Groups Sue to Stop Exit from RGGI

Legal action calls for Virginia to remain in Regional Greenhouse Gas Initiative and continue participation; challenging Youngkin administration action.

On Monday, Aug. 21, the Southern Environmental Law Service filed a petition for appeal in Fairfax Circuit Court on behalf of a coalition of four environmental groups, including Reston-based Faith Alliance for Climate Solutions. The suit challenges the Virginia State Air Pollution Control Board, Virginia Department of Environmental Quality, and  Michael Rolband, director of Virginia Department of Environmental Quality, for plans to withdraw Virginia from the Regional Greenhouse Gas Initiative, or RGGI (pronounced Reggie). The other petitioners are the Association of Energy Conservation Professionals, Virginia Interfaith Power & Light, and Appalachian Voices.

“The primary issue in this case, however, remains simple: Virginia’s participation in RGGI is required by law. The Agency Respondents do not have the authority to contradict decisions of the General Assembly and in any event, cannot do so on this record, which lacks evidentiary support for the respondents’ changed position,” argued counsel for the petitioners, Southern Environmental Law Center.

The action requests the Court, among other things, “invalidate, vacate, and declare null and void the Agency Respondents’ approval and issuance of the Final RGGI Repeal; (and that) this Court direct the Agency Respondents to take all necessary steps to reinstate the RGGI Regulation and continue participation in RGGI.”

“The Director must continue selling carbon allowances, the state treasurer must continue distributing the proceeds from such allowance sales into specific accounts, and the responsible state agencies must continue filing annual reports about Virginia’s participation in RGGI,” states the petition.

The 2020 RGGI Act requires Virginia to participate in RGGI at least through 2030, according to the petition with the Air Pollution Control Board maintaining the RGGI Regulation. 

From 2031 to 2050, the 2020 Utility Act “requires the Air Pollution Control Board to maintain a regulatory program to reduce power plant emissions but affords the Board some discretion in how to do so—including allowing the Board to keep the existing 2021 to 2030 RGGI Regulation in place,” states the petition.

According to Andrea McGimsey, the executive director of Faith Alliance for Climate Solutions, the Regional Greenhouse Gas Initiative has dramatically reduced pollution from power plants while protecting Virginians from the growing effects of climate change.

"RGGI helps us leave a better world to our children and grandchildren, and we will continue to vigorously defend Virginia's participation in this successful, bipartisan program," she said in a FACC Facebook post on Aug. 3. Virginia joined the Regional Greenhouse Gas Initiative in 2021 after the General Assembly passed a law in 2020 requiring Virginia's participation in the regional program.

The Regional Greenhouse Gas Initiative, established in 2005 by seven governors, includes twelve Northeast and Mid-Atlantic states and one Southern state. These states are part of the mandatory, market-based Regional Greenhouse Gas Initiative, which seven governors established in 2005. They are Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Virginia.

The twelve individual state programs function as a regional carbon emissions compliance market. The initiative sets a cap on carbon dioxide (CO2) emissions from fossil fuel-fired power plants with a capacity of 25 MW or higher and allows sources to trade emissions allowances.

On June 9, 2023, carbon dioxide allowances were sold in the 60th RGGI Auction at a clearing price of $12.73, according to RGGI, Inc.: "The auction generated $280.4 million for states to reinvest in strategic programs, including energy efficiency, renewable energy, direct bill assistance, and GHG (greenhouse gas) abatement programs." 

The Regional Greenhouse Gas Initiative represents the first cap-and-invest regional initiative implemented in the United States. The program began "by capping emissions at current levels in 2009 and then reducing emissions 10 percent by 2018," according to the IEA, the International Energy Agency.

"It is critical that we continue our participation in RGGI, a proven climate solution," said SELC Senior Attorney Nate Benforado.

According to the  Petition for Appeal, “Virginia has seen significant benefits since joining RGGI. Carbon dioxide emissions from Virginia power plants have declined by 16.8 percent in the first two years of participation. The RGGI auctions have also generated over $650 million for Virginians, which have flowed to important flood resiliency and energy efficiency programs, as required by the

2020 RGGI Act.”

On June 7 this year, the Virginia state regulator, the Air Pollution Control Board, voted 4-3 to repeal Virginia's participation in the Regional Greenhouse Gas Initiative. According to scientists, carbon emissions contribute to global warming, accelerating sea level rise, and worsening extreme weather. On the day the Virginia regulator voted for the repeal, Canadian wildfire smoke caused a local code-red air quality alert.

On Dec. 8, 2021, then-Governor-Elect Youngkin stated that one of his first executive orders would be to withdraw Virginia from the initiative, which he called a carbon tax. "We're no longer going to be part of it," Youngkin said during a speech to the Hampton Roads Chamber of Commerce.

State law allows utilities to recover the costs of allowance purchases from their ratepayers. The Virginia State Corporation Commission approved on July 12 a modified reinstatement and revision of the rate adjustment clause, designated Rider RGGI. Residential customers will see an additional fee of approximately $4.44 on their monthly electric bills beginning Sept. 1 to cover the utility’s costs of participating in the market between July 31, 2022, and the end of this year. Previously. Dominion Energy added about $2.39 to the average residential electricity bill.