Pursuant to a 2021 statute enacted by the Democratic-controlled General Assembly, the Virginia Air Pollution Control Board (VAPCB) adopted a regulation that links Virginia vehicle emission standards to those adopted by the California Air Resources Board (California Board). Because of that statute, Virginia will have to comply with a rule recently adopted by the California Board that will bar the sale of any new gasoline-powered cars, SUVs, and pickup trucks in California starting in 2035. Governor Youngkin, Attorney General Miyares and Republican members of the General Assembly have called for repeal of the 2021 Virginia statute.
See the California Board press release here.
and articles here, here, and here.
It would be a major blunder if Governor Youngkin, Attorney General Miyares, and Republican members of the General Assembly argue to repeal the Virginia emissions control statute only on narrow policy grounds. Focusing on the pros and cons of the merits of regulating vehicle emissions would allow Virginia Democrats to avoid having to explain why the 2021 statute was enacted by the Democrat-controlled General Assembly and signed into law by Governor Ralph Northam despite its violation of the Virginia Constitution.
In an article posted on Bacon’s Rebellion on December 18, 2021, I cited provisions of the Virginia Constitution, Virginia Supreme Court decisions, and the U.S. Constitution to explain why the Virginia General Assembly’s 2021 emissions control statute was unconstitutional.
To summarize the main points of my critique of the 2021 statute:
(1) The General Assembly’s legislative power is not unlimited or unfettered, and that power is constrained by the Constitution of Virginia and the United States Constitution;
(2) Although the General Assembly has broad authority to delegate power to Virginia administrative agencies: (a) any such delegation is subject to any express or implied prohibitions of the Virginia Constitution or the United States Constitution, and (b) the power to exercise delegated authority cannot be removed from the control of representatives of the people of Virginia;
(3) Virginia officials cannot contract away, abridge or weaken any sovereign right of power of the State of Virginia, and the General Assembly cannot do so by statute;
(4) Although the General Assembly can delegate power to the VAPCB to administer vehicle emission standards: (a) the General Assembly cannot delegate such power to administrative officials in another State; and (b) the VAPCB cannot delegate any authority conferred by it by the General Assembly to an administrative entity in another State;
(5) Section 177 of the Federal Clean Air Act does not require or justify the 2021 emissions control statute; and
(6) The 2021 vehicle emissions statute is unconstitutional because it has the practical effect of: (a) surrendering the sovereignty of the people of Virginia to the control of another State by giving control of Virginia’s police power over vehicle emissions to another State; and (b) forcing Virginians to make vehicle purchases constrained by legal standards set by another State, including future amendments and changes made to those standards without consultation with, or consent by, the General Assembly.
Anyone interested in looking at my full argument or reviewing the legal citations made to support it should read my article posted on Bacon’s Rebellion.
Regardless of its conclusions about the need to regulate vehicle emissions, the General Assembly cannot ignore or neglect its responsibility to act within the limits of its authority under the Virginia Constitution. The General Assembly cannot legitimately decide on the pros and cons of a proposed environmental solution without careful consideration of whether proposed legislation is consistent with relevant provisions of the Virginia Constitution.
Under the Virginia Constitution, Virginia’s sovereignty rests with the people of Virginia (Virginia Constitution, Article I, Section 2) and the General Assembly cannot surrender or delegate Virginia’s sovereignty to another State. Nor can the General Assembly or Virginia administrative officials try to make Virginians subject to laws or regulations promulgated by other States (Virginia Constitution, Article I, Section 6). Legislative or administrative convenience does not excuse or justify Virginia officials enacting statutes or promulgating regulations that surrender or delegate any portion of Virginia’s sovereign powers to another State.
Neither the General Assembly nor Virginia administrative officials can evade their constitutional responsibility to be accountable to the people of Virginia by trying to delegate policy decisions to another State.
Good intentions do not excuse or justify the passage of unconstitutional legislation. Policy arguments about the pros and cons of a proposed solution cannot be legitimately resolved by ignoring, neglecting, or evading pertinent provisions of the Virginia Constitution. Nothing in the Virginia Constitution exempts the General Assembly and other Virginia officials from acting in compliance with the provisions of the Constitution.
If the General Assembly does not repeal the unconstitutional vehicle emissions statute, Virginians should vote out of office any members of the General Assembly who fail to recognize their duty to act in compliance with the Virginia Constitution. And if the political option fails to obtain the repeal of the unconstitutional statute, Virginians adversely affected by the statute in the future should seek advice of an attorney licensed in Virginia about obtaining judicial relief by challenging the statute’s constitutionality in Virginia courts.
