Bacon's Rebellion

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An Alternative Interpretation of the EV Statute

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by

Dick Hall-Sizemore
in , , ,

by Dick Hall-Sizemore

This is a follow-up to Steve Haner’s article on Gov. Youngkin’s announcement that Virginia will not be bound by California regulations on electric vehicles after this year.

The Governor’s announcement is a lawyer’s dream. There are different ways to interpret the laws and regulations involved and, so, off to court we go.

First, some background to refresh your memory. The 2021 General Assembly passed legislation saying the Air Pollution Board may adopt a zero emission vehicle (ZEV) regulation, using the California standards. The language also included some “shalls” placing conditions on that authority.

The Air Pollution Board adopted such a regulation. The regulation includes, by reference, specific California regulations. Those California regulations are listed in a section of the Virginia regulation.

California decided to upgrade its ZEV regulation. However, instead of amending the regulation on the books, it repealed it, effective the end of this year, and adopted new regulations. Therefore, the Virginia regulation adopts a California regulation by reference that will no longer be in effect after this year. (In the documents that are flying around, the current California regulation is referred to as ACC I and the new one as ACC II. (“ACC” is the acronym for “Advanced Clean Cars”, not Atlantic Coast Conference.)

Attorney General Jason Miyares opined that the word “may” in the Virginia statute is permissive; the Air Pollution Board is not required to adopt the regulation incorporating the California standards. All the “shalls” in the statute that follow the “may,” he says, are “conditionally mandated provisions.”  They are conditions that come into play if the Board exercises its discretion to adopt the regulation. His opinion also refers to the following language in one of the enacting clauses of the legislation (not codified):

As part of any update to the required regulations to ensure compliance of the ZEV program with the federal Clean Air Act (42 U.S.C. sec. 7401 et. Seq.), the Board shall adjust, if necessary, restrictions…. [Emphasis added.]

The Attorney General concludes:

Although the Board chose to adopt ACC I’s model year standards, which are now set to expire at the end of 2024, it has not chosen to adopt ACC II’s. Should the Board, in its discretion, choose to adopt ACC II’s LEV and ZEV model year standards, then the Board “shall” comply with the otherwise conditionally mandatory provisions of the statute.

Accordingly, it is my opinion that the Board is not required to adopt the LEV and ZEV standards contained in California’s Advanced Clear Cars Program II.

There is another way to interpret the statute.  Certainly, the Board had the discretion to adopt, by reference, the California standards and I agree with Miyares’ interpretation of the “shall.” However, the statute does not specify ACC I. It authorizes the Board to adopt the California regulations, whatever they may be. If the Board exercises this option (which it did), there is a “conditionally mandated provision”: “The Board shall periodically amend any regulations adopted pursuant to this section to ensure continued consistency of such standards with the Clean Air Act.” Furthermore, the enacting language requires (“shall”) the Board, in order to keep Virginia’s ZEV program in compliance with the Clean Air Act, to adjust, if necessary, its provisions to match California’s regulations. In summary, as long as Virginia’s regulation is in the Virginia Administrative Code, the Board must adjust it to meet California’s standards, i.e. ACC II, effective Jan. 1, 2025.  The Governor and the Board have no authority to override or ignore the law that requires the Board to amend its regulation to incorporate ACC II.

This is an issue that will be fought out in the courts. The Youngkin administration could have avoided this confrontation simply by having the Air Pollution Control Board repeal this regulation, similar to how it handled RGGI.

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21 responses to “An Alternative Interpretation of the EV Statute”

  1. energyNOW_Fan Avatar
    energyNOW_Fan

    I gave my speech below under Steve's OP. But big picture, this is fundamental issue for USA with California unfairly usurping Federal regulation, and then Blue States allowing this anarchy to continue because they want to support letting Ca. have extremist policies that Blue states want to adopt too.

  2. Stephen Haner Avatar
    Stephen Haner

    Yeah, what I didn't understand before yesterday was that California's CARB did not just amend its 2012 regulation, but repealed and replaced it. That do make a difference. But it is also relevant that ACC II was not needed to comply with the CLean Air Act, so that that enactment clause didn't apply.

    Here you and I go again. Practicing law without a license.

  3. DJRippert Avatar
    DJRippert

    Outsourcing is a difficult business. The company providing the outsourced contract is effectively providing an external substitute for internal capabilities previously provided by the company hiring the outsourcer.

    After price, the biggest issue is governance. Who really controls what the outsourced effort does, how it does it, etc.

    When Virginia outsourced its EV regulations to California, there was apparently too little attention paid to governance. California could bend, staple, fold, and mutilate its own regulations with no input from Virginia.

    Time for The Imperial Clown Show in Richmond™ to put on its big boy pants and write our own regulations.

    1. Stephen Haner Avatar
      Stephen Haner

      That we cannot do. Either a state follows California or it abides by the EPA. At least with EPA, Virginians get to vote for the Federal Imperial Clowns who manage that ring of the circus.

      1. DJRippert Avatar
        DJRippert

        The only people who would want to follow California politics are people who have never been subject to California politics.

        There are a lot of great things about California.

        Their regulatory environment is not one of them.

        1. LarrytheG Avatar
          LarrytheG

          You've been subject to California regulation for decades whether you realize it or not… things like how much mercury in tuna or what kinds of chemical in weed and insect killers…etc… stuff Va has been and continues to be a gigantic "huh" on.

          California has no rivers with Kepone in them, not luck.

  4. LarrytheG Avatar
    LarrytheG

    Part of this with respect to citizens is whether or not more folks become more convinced about Global Warming and what we should do – or not. I'm not convinced at all that this will benefit Youngkin nor Miyares. I think people support the cleaner air and lower emissions and see transitioning to hybrids and EVs as a good thing if for not other reason that these cars will get better fuel mileage and as more EVs hit the roads, will have an effect on gas prices.

    Conservative folks have got themselves wrapped around the proverbial axle on these regs. Conservatives have opposed the Calif emissions from the get go many years ago. It''s not like they supported them initially and now say "too much". They've been opposed from day one.

    1. Chip Gibson Avatar
      Chip Gibson

      Opposed from day one. And, that's called clarity, perseverance, and congruous belief. Follow the path of California…..to hell?

      1. LarrytheG Avatar
        LarrytheG

        opposed all pollution restrictions?

        1. Chip Gibson Avatar
          Chip Gibson

          No, but opposed to Marxism and overreach by the liberal elite. There are sound and reasonable limits to regulation. The hypocrisy of liberals displays that all very clearly. And, you have a fine June evening in the Commonwealth, Sir.

  5. walter smith Avatar
    walter smith

    How quaint…following the law- hahahaha. We blew past that a long time ago.
    But first, really big picture, I don't see how Virginia can enact a "law" relying on another State to establish standards – a total abrogation, and now to even think that we are bound by a later enacted statute OF ANOTHER STATE – is beyond outrageous. It should be a non-starter and unconstitutional under the Virginia Constitution ab initio. Our government is out of control, at all levels.
    The "Rule of Law" has been destroyed by Trump Derangment Syndrome. Oh, now we need to adhere to the law, is that it? When Law liked by Left, compulsion. When disliked by Left, free rein for anarchy. The good thing about the Manchurian Marxist Obama is that he is lazy. After working to ensure that Trump got the nomination, he and his minions were so confident Hillary was going to win that he didn't arrange to steal enough votes to win. That's why the networks wouldn't declare a winner until 3 AM…the Dems were caught flat footed. And that partly fueled the rage – Hillary would have appointed 3 crazed Marxist Judges making it up as they go, and Dem hegemony would be established forever with the Constitution destroyed. They were SO CLOSE!

    So that animated the rage all the more and it began with Obama spying on Trump. You will notice how a bunch of "conspiracy theories" end up as true here…
    RUSSIARUSSIARUSSIA was a made up FBI/Obama job. Hillary being let off the hook for her illegal server and destruction of records. "No reasonable prosecutor" – remember? Two bogus impeachments – one for exercising legitimate presidential authority and one for an inside Fedsurrection over an election that was stolen. The Hunter laptop was fake said 51 spooks with security clearances, while the FBI had it and knew it was real. Now the Hunter laptop IS real and is being used as evidence in the trial that they have already greased the skids for an acquittal. (Judges can tip the scales lots of ways in a trial…see Judge Merchan in the invented non-crime 34 felonies in NYC). The J6 Committee was illegally constituted. Navarro and Bannon sentenced for Contempt of Congress for obeying a claim of executive privilege to appear before an illegally established Congressional Committee that has destroyed evidence and falsified records and edited videos and hidden testimony and refused witnesses who wouldn't adhere to the "insurrection" narrative. Contempt of Congress should be required for any thinking American. "Safe and effective" Mandates over the Nuremberg Code. Denial of religious liberty. A facially wrong opinion from Mark Herring on the vaccine. Grandmas in jail for singing hymns at abortion clinics. Antifa and BLM ignored and set free to do it again. Millions of illegals intentionally let in and being imported all over the country to eventually "vote" for perpetual Dem rule. FBI investigating parents who protest school board actions. Political verdicts. Running on prosecuting Trump. Trump did none of these legal abuses. Leftists did. All to "Save our Democracy!!!!!" That phrase really means save our oligarchic grift. Besides we are a republic. And the current Dem behavior indicates why a pure democracy is doomed to fail with the excesses unmoderated by time and the friction designed in the Constitution.

    We need to get back to law. That requires we get back to morality. We could begin by abhorring lying. And please, Lefties, quit your "the WaPo say Trump lied 30,000 times!" Hold all people to the same standards. Biden is brain dead. And a cheaply bought traitor, with a sexual deviant son, who may have gotten that gene from his shower with his daughter pervert Dad.

    The lawfare is beyond despicable. It is country-ending. And the loss of America as a beacon could be civilizational ending. In that vacuum the Muslims will conquer all (nature abhors a vacuum) and then think of all the good your blind adherence to your Marxism will have wrought. All those gays killed and women in hijabs…worse than the fake fear of "Christian Nationalists" –

    WAKE UP

    1. Chip Gibson Avatar
      Chip Gibson

      Outstanding, Sir! Do you mind if I cut and paste this for my records? Brilliant resource. Owe you a cold beer or two.

      1. walter smith Avatar
        walter smith

        You’re welcome to take as much as you want. Unfortunately, there is much much more. We can’t keep up with the double standards and outrages and just get force fed more and more TDS…to save our Democracy!

        1. Chip Gibson Avatar
          Chip Gibson

          God Speed and Sic Semper Tyrannis.

  6. LarrytheG Avatar
    LarrytheG

    So was it wrong for Va to sign on to California emission standards originally? We should have never done so to start with?

  7. LarrytheG Avatar
    LarrytheG

    Simple truth is, we have much cleaner air (and water) due to the EPA and California. If we waited for Virginia to take the lead, we'd die waiting for sure…

    We have a cleaner Bay – because of the EPA not DEQ.

    We have cleaner cars because of California not Va regs.

  8. f/k/a_tmtfairfax Avatar
    f/k/a_tmtfairfax

    Lots of states have the same or similar language in their statutes and regulations. But they generally achieve this result by the state legislature specifically enacting a bill that contains such language. Likewise, state agencies generally follow state law and adopt rules that contain the specific language at issue. Doing it the Virginia way is an insult to state sovereignty and simply constitutes the display of wokeness in this case.

    Adopt the California standards and amend them if and when they change.

    1. LarrytheG Avatar
      LarrytheG

      Yes. A lot of states DO Adopt regulations, laws, etc so they'll not re-create the wheel.

      Done for a wide variety of pollution standards, food safety, health, building standards, energy standards, etc.

      In fact, some Conservative groups like the American Legislative Exchange Council (ALEC) create and promote "model legislation"

      And I don't hear the same folks complaining about adopting Cali standards also complaining about adopting ALEC model codes…

      A middle ground could be to adopt part and make state-specific changes… that conform better to each states unique issues.

      California has led the way on a variety of things that the Feds said that States COULD elect to add to the Feds standards.

      That's where the original California Emission standards came from and back then, there were two kinds of cars – the ones that met Cali emissions and the ones that did not.

      Then some more states decided they would do their own separate and different standards and the car companies called a halt to it.

      But even today, if you look at some products from weed-killers to food additives to bank laws – it will say it's not in accordance with California standards, i.e. can't be sold in Cali.

      And a LOT of the stricter Cali standards end up being adopted by other states.

      California has always led the way on these issues and other states do follow.

      1. f/k/a_tmtfairfax Avatar
        f/k/a_tmtfairfax

        That's not the issue. The issue is a state government effectively delegating its authority and responsibilities to another state using an autopilot approach. If Virginia, North Carolina or any other state wants to adopt California standards for automobile emissions, those states should adopt them through legislation or regulations proposed and approved using state law versus adopting a rule that says whatever they do is our rule.

        1. LarrytheG Avatar
          LarrytheG

          Are you “delegating your authority” if you “adopt” an existing model law or regulation? Va and NC already do…. I’m sure you’ve heard of ALEC. They write and states adopt it.

  9. William O'Keefe Avatar
    William O’Keefe

    Virginia doesn't need to adopt the California standards to meet the air quality standards of the Clean Air Act. It is that simple.

    California's ZEV mandate has little to do with clean air and everything to do with climate change. It will accomplish little or nothing because CO2 emissions are global and are continuing to rise because of China, India, and developing nations who burn coal in their own self interest.

    The GA's legislation on the California standards was ideologically driven and not based on economics or what Virginia could do to address its climate problems. There are an increasing number of independent analyses that show that the notion of zero emissions by 2040 or 2050 is a folly that will impose a lot of economic pain on citizens that far exceed claimed benefits.

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