This story was reported and written by VPM News.
A new executive order issued by President Donald Trump could affect Virginia’s energy and environmental policies.
The April 8 order, titled “Protecting American Energy from State Overreach,” directs US Attorney General Pam Bondi to “identify all [State laws] burdening the identification, development, siting, production, or use of domestic energy resources that are or may be unconstitutional, preempted by Federal law, or otherwise unenforceable.”
It also orders Bondi, who leads the US Department of Justice, to take actions to stop the enforcement of those state laws and file a report within 60 days. The order seems to implicate state law like the Virginia Clean Economy Act, which requires a gradual transition to carbon-free energy production in the commonwealth.
It also targets programs that put a cost on carbon emissions, singling out California’s carbon cap and trade market. Virginia previously participated in a similar multistate market called the Regional Greenhouse Gas Initiative, or RGGI. Debate about the program’s future within the commonwealth is ongoing.
Republican Gov. Glenn Youngkin ordered Virginia to leave that program in 2022, calling it a tax on electric ratepayers. A Floyd County Circuit Court judge ruled that move violated state law late last year, but that ruling is suspended while the Youngkin administration pursues an appeal.
Separately, implementing the VCEA has been complicated by rapidly growing energy demands in the state. But 4th District Congresswoman Jennifer McClellan, the Democrat who carried the now-law as a Virginia state senator in 2020, told VPM News she doesn’t believe the Trump administration has authority to supersede state energy policy.
“Trump is weaponizing the DOJ to put his billionaire oil and gas donors over the clean air and water of the American people and over unleashing wind and solar energy in a way that will help us meet growing demand faster without putting our lives at risk,” McClellan said.
Cale Jaffe, a University of Virginia environmental law professor, said the order seems to leverage two doctrines against state climate policy:
- the Dormant Commerce Clause, which bars state interference in interstate commerce
- and the Supremacy Clause, which places federal law above state law
“Conservative legal scholars have been very skeptical of this kind of activist use of those doctrines to shut down state innovation,” Jaffe said.
He referred to judgments made by US Supreme Court Justice Neil Gorsuch, a Trump appointee, including one that came out of Virginia.
In Virginia Uranium Inc. v. Warren, Virginia Uranium Inc. argued that the federal Atomic Energy Act preempted Virginia’s blanket ban on uranium mining via the Supremacy Clause. Gorsuch disagreed in a 2019 opinion, stating that Congress had not made any attempt to tell states how to regulate uranium mining.
“[The order] sort of ignores that we have long — for almost 100 years now — accepted this idea that states really are the innovators when it comes to electricity policy,” Jaffe said. “It builds on this idea… of laboratories of democracy.”
McClellan agreed that there’s not a clear-cut federal authority over state governments when it comes to energy policy.
“I think that states and the federal government have concurrent jurisdiction over energy policy,” she said, “and that the Virginia Clean Economy Act and similar laws fit squarely within the authority of the states.”
The Democratic legislator added that she was concerned about Trump’s policies impacting Virginia’s environmental justice protections, arguing states and localities should have the authority to reject power sources with adverse health impacts, such as fossil fuels.
“EJ is about first recognizing that fact and giving everyone the ability to have a say on whether they have these projects in their communities,” McClellan said. “That public input — that’s an American value.”
Peter Finocchio, a spokesperson for Youngkin, said the governor’s office is reviewing Trump’s order.
“It is great news that President Trump is taking bold action on energy dominance,” Finocchio wrote in an email. “As the Governor has made clear in his All-American, All-of-the-Above Energy and Power Plan, and throughout his Administration, the Commonwealth and the Nation need more base load and dispatchable generation to power economic growth.”
Trump’s order comes after other actions to diminish environmental policy at the federal level, including gutting the Environmental Protection Agency’s workforce and moving to reconsider the 2009 Endangerment Finding, which held that greenhouse gas emissions “threaten the public health and welfare of current and future generations.”
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