Virginia Governor’s Veto on 3/2/16 of Senate Bill Requiring General Assembly Oversight of State Implemention of Federal Clean Power Plan; Similar House Bill Also Vetoed; General Assembly Also Passed Budget Item Restricting Funds for Clean Power Plan

Originally posted March 3, 2016; updated May 4, 2016.

On March 2, 2016, Va. Gov. Terry McAuliffe vetoed Senate Bill 21, sponsored by Sen. by Ben Chafin (R-38th) of Lebanon (Russell County), which would require the Virginia Department of Environmental Quality (DEQ) to get approval by the General Assembly before implementing any plan for the Commonwealth to comply with the U.S. EPA’s Clean Power Plan for regulating carbon emissions from existing power plants.

A similar bill, House Bill 2, sponsored by Del. Israel O’Quinn [R-5th District] of Bristol, would also have required General Assembly approval before before implementing any plan for the state to comply with the Clean Power Plan.  That bill also passed the Assembly, but Gov. McAuliffe vetoed it, as well, on March 25.

In his statement on the veto of Senate Bill 21 (available in a March 2, 2016, news release online at http://governor.virginia.gov/newsroom/newsarticle?articleId=14327), the governor stated the following: “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.  Under Article III of the Constitution of Virginia, the legislative, executive, and judicial branches of government must remain separate and distinct, such that none may exercise the powers properly belonging to the others.  Requiring DEQ to obtain the approval of each chamber of the legislature before submitting a plan to comply with the Clean Power Plan constitutes legislative participation in a purely executive process.  As such, Senate Bill 21 violates Virginia’s constitutional separation of powers under Article III.”

The Assembly, however, added an amendment to the Commonwealth’s biennial budget for 2016-17 (Item 369 #1h, available online at http://budget.lis.virginia.gov/amendment/2016/1/HB30/Introduced/FA/369/1h/) prohibiting the DEQ from spending any funds to prepare a state implementation plan for the Clean Power Plan as long as the U.S. Supreme Court’s February 2016 stay on the regulation remains in effect, pending the outcome of litigation against the EPA over the plan.  Gov. McAuliffe proposed an amendment to remove that restriction on DEQ spending, but in the reconvened session on April 20, the Assembly did not approve the governor’s amendment.   (Sources: Clean Power Plan in limbo, but that hasn’t stopped wrangling over it in Virginia, Virginian-Pilot, 4/25/16.  McAuliffe gets poor marks from environmental coalition, Roanoke Times, 4/28/16.)

For more on the Clean Power Plan regulation, including a pending lawsuit by several states challenging the regulation, please see the following News Grouper items:

Final Version of “Clean Power Plan” Announced by President Obama and the U.S. EPA on August 3, 2015; Carbon Emissions from Existing Power Plants to be Reduced by 32% Nationwide; States Have Individually Set Reduction Targets.

Clean Power Plan Lawsuit Against U.S. EPA – Supreme Court on Feb. 9, 2016, Grants Stay of Regulation Implementation While Litigation Proceeds.

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