The nonprofit Appalachian Voices is suing Virginia for forcing it to release a document that allegedly contains an opinion from the attorney general’s office that Virginia Governor Glenn Yongkin cannot withdraw the state from the regional carbon market.
The lawsuit, filed in Charlottesville Circuit Court, alleges that the Virginia Air Pollution Control Board, the Virginia Department of Environmental Quality and the Attorney General’s office “unlawfully withheld a public record … wrongly relying on a statutory exclusion that does not apply.”
The Southern Environmental Law Center is represented by the Appalachian Voices, a regional nonprofit environmental and economic development organization, as well as Virginia’s director of policy, Peter Anderson.
The issue stems from Comment made by Air Board Member Hope Cubitt At a meeting in April she said she “got an opinion from the attorney general’s office back in March that it was not the responsibility of the board” to remove Virginia from the regional greenhouse gas initiative but that “that’s the responsibility of the General Assembly.”
Even before it was installed, Youngkin vows to pull Virginia out of RGGIa multi-state agreement that requires energy producers to pay for every ton of carbon dioxide they emit in quarterly auctions.
Joining RGGI has been a long-standing goal of Virginia Democrats, who have successfully passed legislation authorizing the state’s participation in 2020 as part of overall efforts to combat climate change.
Under the 2020 law, half of RGGI’s proceeds must go toward low-income energy efficiency programs, and 45% must go to the Community Flood Preparedness Fund, a program that provides assistance to statewide communities facing frequent flood problems.
In 2021, Virginia received $228 million in RGGI auction proceeds. Nearly three-quarters of the state’s emissions come from factories operated by Virginia’s regulated electric utilities, which are permitted by law to pass on RGGI costs to price payers.
The average Dominion residential customer pays an extra $2.39 per month To cover the costs of RGGI, although Utilities recently asked state regulators to stop fees Instead fold it into basic modifiers.
Yongkin has RGGI criticized as an ineffective carbon tax This is a “bad deal for Virginians” and Try several different strategies to get out of the regional marketincluding legislation, budget language, and regulatory reform.
Senate Democrats, where the party has a slim vote margin, rejected his legislative attempts, but the governor’s organizational efforts continue. In an opening day executive order, Yongkin directed the Department of Environmental Quality to develop regulations to roll back the state’s framework for RGGI participation. These regulations require approval from the state’s seven-member Air Pollution Control Board, and are expected to be brought before it later this summer.
Environmental groups including the Southern Environmental Law Center have consistently argued that Yongkin lacked the ability to withdraw Virginia from RGGI because state participation was mandated by the General Assembly.
As a result, the Appalachian Voices argued in a memo filed with the lawsuit Thursday, “The existence of a written opinion by a Commonwealth attorney that such action by the Board would violate the law is of significant consequences for Virginia’s economic and environmental future.”
In the petition, Appalachian Voices and Anderson said they filed requests under Virginia’s Freedom of Information Act for copies of the opinion Cubitt said she received from the attorney general’s office.
Both DEQ and the attorney general’s office said they had a record but refused to release him on the grounds that the state’s Freedom of Information Act exempts him from mandatory disclosure because it is protected by attorney-client privilege.
But Appalachian Voices says that “the narrow exclusion of information protected by attorney-client privilege does not apply where, as here, the information is publicly disclosed by the client.”
“By voluntarily sharing information it received from attorney with parties outside the attorney-client relationship, Ms. Cobbett waived any attorney-client privilege that would otherwise protect such information,” the group wrote in its memo Thursday.
Victoria Lakivita, a spokeswoman for the attorney general’s office, said the office “cannot comment on the pending lawsuit.”
State Law Requires a hearing within seven days.