by Dick Hall-Sizemore
This 
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 However, instead of amending the regulation on the books, it repealed it, effective the end of this year, and adopted new regulations.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.