Gov. Ralph Northam

Virginia’s plan for cutting carbon dioxide pollution from power plants rests with Gov. Ralph Northam, who is weighing whether to veto a roadblock Republican legislators erected in the budget to prevent the state from joining a multistate compact to curb greenhouse gases linked to climate change.

Environmental groups have been pushing hard for Northam to veto a budget provision that blocks any state spending for Virginia’s participation in the Regional Greenhouse Gas Initiative, or RGGI. It is a compact of nine states from the Mid-Atlantic to New England that operates a market for capping and trading carbon dioxide emissions.

The governor has until Friday night to veto budget provisions he doesn’t like, including a restriction on state funding of abortion services and a change that would stop the state from paying medical providers, including some that perform abortions, for inserting long-term contraceptive implants.

Northam and his team are weighing whether any potential line-item budget veto would withstand legal challenge at the Virginia Supreme Court.

“There are a lot of other considerations besides the specific issue,” Secretary of Finance Aubrey Layne said Tuesday. “He’s still evaluating those consequences.”

The standard under decades-old Supreme Court rulings is that a Virginia governor cannot veto a budget condition set out in language without also vetoing the underlying appropriation. In this case, the appropriation is any funding, from any source, that would support the state’s participation in the greenhouse gas initiative.

House Speaker Kirk Cox, R-Colonial Heights, working with House Clerk Paul Nardo, will decide whether any gubernatorial budget veto meets constitutional standards or whether to simply refuse to recognize it as valid. House Republican leaders refused three times to recognize then-Gov. Terry McAuliffe’s attempts to veto budget language that prevented him from expanding Medicaid without legislative approval.

“It depends on what he chooses to veto and how he chooses to do it,” said Matthew Moran, Cox’s chief of staff. “We haven’t decided yet.”

The most likely battleground is budget language that says “no expenditures” from any source in the budget “shall be used to support membership or participation” in the regional initiative without General Assembly approval.

The provision, which the legislature upheld in a party-line vote on April 3, provides an exception for previous contractual obligations. It also restricts the use of revenues from the auction of carbon allowances under the cap-and-trade system from being appropriated in the budget without legislative approval.

The language would paralyze the new state carbon cap-and-trade rules that the Virginia Air Pollution Control Board adopted on April 19 and thwart a central goal of Northam’s agenda for reducing pollution that scientists say has dire consequences for the earth’s climate.

Nate Benforado, a staff attorney at the Southern Environmental Law Center in Charlottesville, called the budget provision “a backhand attempt” to take away the state’s statutory authority to regulate air pollution.

Benforado said that joining the regional initiative is “a very proactive, a very positive step that Virginia can take to address threats to climate.”

He is among a group of environmentalists who have been meeting with administration officials since the assembly veto session on April 3 to convince the governor that he would be on safe legal ground to veto the language.

“This is a significant piece of general legislation inserted into the budget,” said Benforado, who noted that Northam had vetoed separate legislation that would have done the same thing.

Environmentalists are not asking the governor to veto a separate budget provision that would require any revenues from the regional compact or a similar transportation climate initiative to be deposited in the budget’s general fund and “not be used for any other purposes without appropriation by the General Assembly.”

That provision “is more directly related to the budget,” Benforado said.

Environmentalists cited previous vetoes by Republican Govs. Bob McDonnell in 2012 and Jim Gilmore in 2000 that were recognized as valid by the House clerk at the time under what they say are similar circumstances to the current dispute over the greenhouse gas initiative. Nardo became clerk in 2011.

“If the clerk is treating this governor the way he’s treated other governors, this [veto] would clearly be recorded,” said Albert Pollard, a former House Democrat who is now a consultant for a clean energy organization.

However, Nardo cited numerous precedents when he refused to recognize McAuliffe’s vetoes in 2016 and 2017 of budget language that prevented the state from accepting any money for expanding Medicaid under the Affordable Care Act. In 2014, then-Speaker Bill Howell, R-Stafford, personally ruled a similar gubernatorial veto by McAuliffe out of order.

Environmentalists say Northam has a series of options if he vetoes the provision and the clerk refuses to publish it in the Acts of Assembly that become law on July 1. The governor could acquiesce to the clerk’s refusal or issue an executive order to state agencies to ignore the provision, which would invite litigation, or challenge the clerk’s ruling at the Supreme Court.

They acknowledge that litigation carries risks, but argue that so does inaction.

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