Does Virginia's State Air Pollution Control Board have authority to regulate greenhouse gas emissions and set a statewide cap on power-plant carbon?

Plain-English summary

House Minority Leader David Toscano asked the AG to assess whether Virginia's State Air Pollution Control Board had legal authority under state law to regulate greenhouse gas (GHG) emissions, especially via a statewide cap on carbon emissions from new and existing fossil fuel electric generating units.

Attorney General Mark R. Herring concluded the answer was yes.

The reasoning runs through three statutory pieces. Section 10.1-1300 defines "air pollution" as "the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interfere with the enjoyment by the people of life or property." The AG concluded GHGs fall within that definition. The "overwhelming body of scientific literature demonstrates a growing consensus among scientists studying carbon dioxide that it contributes to elevated global temperatures and may be harmful to the welfare of people, animals, and property." The EPA's 2009 Endangerment Finding under Section 202(a) of the Clean Air Act made that point at the federal level. So GHGs are air pollution by definition under Virginia law.

Section 10.1-1307(A) authorizes the Board to "abate[] and control [] all sources of air pollution in the Commonwealth." Section 10.1-1308(A) lets the Board promulgate regulations "abating, controlling and prohibiting air pollution throughout or in any part of the Commonwealth." Section 10.1-1306 requires the Board to make "such investigations and inspections and do such other things as are reasonably necessary" to achieve and maintain air quality protective of human health and welfare. The combination is broad enough to support a statewide GHG cap.

The AG noted that the Board already regulates GHGs through its Prevention of Significant Deterioration (PSD) program (codified at 9 Va. Admin. Code §§ 5-85-10 to 5-85-70, effective January 2, 2011). That program requires major stationary sources being constructed or modified to apply for permits and to use the "best available control technology" for GHGs. But the Board's authority is not capped at permitting. The same broad statutory authority that supports PSD also supports a statewide cap.

The AG closed with a procedural caveat. The validity of any specific regulation depends on the administrative record and the Board's reasoned weighing of statutory factors (Commonwealth ex rel. State Water Control Bd. v. Cnty. Utils. Corp., 223 Va. 534, 546 (1982)). Authority exists; whether a particular cap regulation would survive judicial review turns on rulemaking process and substantive justifications.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Virginia carbon-regulation policy has evolved substantially since 2017. The Virginia Clean Economy Act (2020) and Virginia's brief and subsequently exited participation in the Regional Greenhouse Gas Initiative are key developments. Federal Clean Power Plan litigation also continued through the Trump and Biden administrations. Anyone analyzing current Virginia GHG regulatory authority should consult the current Code, current 9 VAC chapters, and current federal SIP requirements.

Background and statutory framework

The State Air Pollution Control Board is Virginia's air-pollution regulatory body. Sections 10.1-1306 to 10.1-1308 set out its powers and duties. Section 10.1-1306 imposes duties to investigate and act as necessary for human health-and-welfare-protective air quality. Section 10.1-1307(A) authorizes comprehensive programs for "abat[ing]" and "control[ling] ... all sources of air pollution." Section 10.1-1308(A) authorizes regulations "abating, controlling and prohibiting air pollution throughout or in any part of the Commonwealth."

The definition of "air pollution" in § 10.1-1300 is functional: substances in the outdoor atmosphere that are or may be harmful to health, welfare, safety, life, or property. The Board adopted the same definition in regulation (9 Va. Admin. Code § 5-10-20). The AG concluded GHGs satisfy the definition: carbon dioxide and other GHGs contribute to elevated global temperatures and may be harmful to people, animals, and property. EPA's December 2009 Endangerment and Cause-or-Contribute Findings under Section 202(a) of the federal Clean Air Act made the same scientific determination at the federal level. Subsequent EPA rulemakings (the 2014 proposed and 2015 final Clean Power Plan rules) reaffirmed the science.

The Board has exercised some of its GHG authority. In 2011 (effective January 2, 2011, codified at 9 Va. Admin. Code §§ 5-85-10 to 5-85-70), the Board promulgated GHG regulations as part of its PSD program. The PSD program requires major stationary sources being constructed or undergoing modification to apply for permits and use the best available control technology for GHGs (9 Va. Admin. Code §§ 5-80-1605, 5-80-1705, 5-85-40). GHGs subject to regulation are defined as the aggregate group of carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride (9 Va. Admin. Code § 5-85-30(C)), subject to a 100,000 ton-per-year CO₂-equivalent threshold for stationary sources (9 Va. Admin. Code § 5-85-30(C)(1)).

Federal context: Virginia's PSD program is part of its federally approved State Implementation Plan under 42 U.S.C. § 7410, codified at 40 C.F.R. §§ 52.2420 to 52.2465. The federal PSD provisions are at 42 U.S.C. §§ 7470-7479. The state SIP and federal framework operate alongside each other, with state authority broader than federal mandates in some cases.

On the cap question: the AG concluded the Board's statutory authority is not limited to permitting. Sections 10.1-1306, 10.1-1307, and 10.1-1308 give broad authority to abate and control air pollution, not merely to require permits. A statewide GHG cap for fossil fuel electric generating plants falls within "abating and controlling" emissions. The AG observed that the Clean Power Plan, then in litigation, offered states the option of a mass-based cap (80 Fed. Reg. 64662 (Oct. 23, 2015)), and Virginia's existing statutory authority could support such a cap independently.

The validity-of-regulation footnote (citing Commonwealth ex rel. State Water Control Bd. v. Cnty. Utils. Corp.) is significant: "the Board's authority to establish and enforce standards was at all times to require that rules be promulgated which are reasonable, practicable of attainment, based upon a fair weighing of the economic and social costs and benefits involved, and of uniform application to all affected parties similarly situated." So the existence of statutory authority doesn't guarantee that any particular cap will survive judicial review; it just establishes that the Board has the power to write one.

Common questions

Q: Does Virginia's State Air Pollution Control Board have legal authority to regulate greenhouse gases?
A: The AG concluded yes. Sections 10.1-1306, 10.1-1307, and 10.1-1308 give the Board broad authority to abate and control air pollution; GHGs qualify as air pollution under § 10.1-1300.

Q: Can the Board set a statewide cap on power-plant carbon emissions?
A: The AG concluded yes. The Board's authority is broader than just permitting and supports a statewide cap on new and existing fossil-fuel electric generators.

Q: Was the Board already regulating GHGs at the time of the opinion?
A: Yes, through its Prevention of Significant Deterioration program (codified at 9 VAC §§ 5-85-10 to 5-85-70, effective January 2, 2011). That program required major stationary sources to obtain permits and apply best available control technology for GHGs.

Q: What's the threshold for GHG regulation under the PSD program?
A: At the time of the opinion, the threshold was 100,000 tons per year of CO₂-equivalent emissions for stationary sources (9 VAC § 5-85-30(C)(1)).

Q: Does this authority depend on federal law?
A: The Board's state-law authority is independent. The federal Clean Air Act framework operates alongside it, including the federally approved SIP and the federal PSD provisions, but the state authority is grounded in Title 10.1 of the Virginia Code.

Q: Would any specific cap regulation automatically be valid?
A: No. The AG flagged that validity depends on the administrative record and the Board's reasoned weighing of statutory factors. Authority is necessary but not sufficient.

Citations and references

Virginia statutes:

• Va. Code Ann. § 10.1-1300 (definitions including "air pollution")
• Va. Code Ann. § 10.1-1306 (Board's investigative and action duties)
• Va. Code Ann. § 10.1-1307 (Board's powers and duties)
• Va. Code Ann. § 10.1-1308 (Board's regulation-promulgation authority)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Virginia regulations:

• 9 Va. Admin. Code § 5-10-20 (definition of air pollution)
• 9 Va. Admin. Code § 5-40-420 (permitting)
• 9 Va. Admin. Code § 5-80-370 (fossil fuel definitions)
• 9 Va. Admin. Code § 5-80-1605 (PSD requirements)
• 9 Va. Admin. Code § 5-80-1615 (electric utility steam generating unit)
• 9 Va. Admin. Code § 5-80-1705 (PSD permit standards)
• 9 Va. Admin. Code §§ 5-85-10 to 5-85-70 (GHG PSD provisions)

Federal statutes and regulations:

• 42 U.S.C. § 7410 (SIPs)
• 42 U.S.C. §§ 7470 to 7479 (federal PSD)
• 40 C.F.R. §§ 52.2420 to 52.2465 (Virginia SIP codification)

Cases:

• Commonwealth ex rel. State Water Control Bd. v. Cnty. Utils. Corp., 223 Va. 534 (1982)

Other federal materials:

• EPA Endangerment and Cause or Contribute Findings, 74 Fed. Reg. 66496 (Dec. 15, 2009)
• Clean Power Plan Proposed Rule, 79 Fed. Reg. 34830 (June 18, 2014)
• Clean Power Plan Final Rule, 80 Fed. Reg. 64662 (Oct. 23, 2015)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-010-Toscano-carbon-pollution- for-issuance.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

May 12, 2017

The Honorable David J. Toscano
Minority Leader, Virginia House of Delegates
211 East High Street
Charlottesville, Virginia 22902

Dear Delegate Toscano:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You have asked several questions regarding the degree to which state law provides authority for the Virginia State Air Pollution Control Board (the "Board") to regulate carbon pollution. Specifically, you ask whether, upon what conditions, and the degree to which the Board has the legal authority to regulate greenhouse gas emissions from new and existing fossil fuel electric generating units via a "statewide cap" on emissions or through other means.

Applicable Law and Discussion

In Virginia, the Board is the governmental entity legally authorized to regulate the emission of air pollutants.[1] The Board is authorized to develop comprehensive programs for the "abatement[] and control of all sources of air pollution in the Commonwealth ...."[2] The Board exercises this authority pursuant to § 10.1-1308(A), which allows the Board to promulgate regulations "abating, controlling and prohibiting air pollution throughout or in any part of the Commonwealth ...."[3]

Pursuant to this authority, the Board has promulgated numerous regulations, ranging from various programs addressing criteria pollutants such as sulfur dioxide and particulate matter, to hazardous air pollutants such as formaldehyde.[4] The Board's regulations require that sources of air pollution obtain a permit prior to a facility's construction or modification.[5] Since 2011, the Board has also regulated the emission of carbon pollution and greenhouse gases ("GHGs"),[6] which include carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.[7] Its GHG regulations are part of its Prevention of Significant Deterioration ("PSD") program.[8] These regulations require that major stationary sources being constructed or undergoing a modification apply for a permit and that the source utilize the "best available control technology" for GHGs.[9]

You ask about the extent of state authority to address carbon pollution. The Board is authorized to regulate "air pollution," which is defined as "the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interfere with the enjoyment by the people of life or property."[10] It is well settled that GHGs fall within this definition. The overwhelming body of scientific literature demonstrates a growing consensus among scientists studying carbon dioxide that it contributes to elevated global temperatures and may be harmful to the welfare of people, animals, and property.[11] Thus, I conclude that GHGs, including carbon emissions, are air pollution by definition and can be regulated by the Board.

You ask specifically about regulation of emissions from new and existing fossil fuel electric generating plants[12] through a statewide cap on GHG emissions.[13] Although the Board has to date chosen to exercise its authority to regulate GHG emissions through its PSD program, its authority is not limited to establishing and maintaining only a permitting system. Indeed, the Board has broad statutory authority to abate and "control [] all sources of air pollution in the Commonwealth ...."[14] Specifically, the law requires the Board to make "such investigations and inspections and do such other things as are reasonably necessary to carry out the provisions of this chapter ... including the achievement and maintenance of such levels of air quality as will protect human health, welfare and safety and to the greatest degree practicable prevent injury to plant and animal life and property ...."[15] And it empowers the Board to promulgate regulations "abating, controlling and prohibiting air pollution ...."[16] Based on these authorities, I conclude that the Board has the authority to establish a statewide cap on GHG emissions for all new and existing fossil fuel electric generating plants as a means of abating and controlling such emissions.[17]

Conclusion

For the foregoing reasons, it is my opinion that the State Air Pollution Control Board is legally authorized to regulate GHG emissions, including establishing a statewide cap on GHG emissions for all new and existing fossil fuel electric generating plants.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] See VA. CODE ANN. §§ 10.1-1306 to -1308 (2012 & Supp. 2016) (providing for the powers and duties of the Board).

[2] VA. CODE ANN. § 10.1-1307(A).

[3] VA. CODE ANN. § 10.1-1308(A).

[4] See generally Administrative Code of Virginia, Title 9, Agency 5.

[5] 9 VA. ADMIN. CODE § 5-40-420.

[6] Permits for Stationary Sources of Pollutants Subject to Regulation, 27 Va. Reg. Regs. 398 (October 11, 2010) (codified at 9 VA. ADMIN. CODE §§ 5-85-10 to 5-85-70, effective January 2, 2011), available at http://register.dls.virginia.gov/details.aspx?id=756 (last visited May 11, 2017). In the summary, the Department explained that the "new chapter enables permitting of GHGs for appropriate sources ...." Id. at 399.

[7] See, e.g., 9 VA. ADMIN. CODE § 5-85-30(C) (providing that "'[g]reenhouse gases (GHGs)' means the aggregate group of six greenhouse gases," which are identified above in the text). This section further provides that "GHGs shall not be subject to regulation unless, as of July 1, 2011, the GHG emissions are at a stationary source emitting or having the potential to emit 100,000 tons per year ... CO2 equivalent emissions ...." 9 VA. ADMIN. CODE § 5-85-30(C)(1).

[8] See 42 U.S.C.S. §§ 7470 through 7479 (LexisNexis, current through Pub. L. No. 115-30). The federal Clean Air Act requires states to submit State Implementation Plans ("SIPs") for approval by the Environmental Protection Agency ("EPA"). 42 U.S.C.S. § 7410 (LexisNexis, current through Pub. L. No. 115-30). See also Basic Information About Air Quality SIPS, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, available at https://www.epa.gov/sips/basic-information-air-quality-sips (last visited May 11, 2017). Virginia's PSD program is a part of its federally approved SIP, which has been codified in the Code of Federal Regulations. See 40 C.F.R. §§ 52.2420 through 52.2465 (LexisNexis, current through May 10, 2017).

[9] 9 VA. ADMIN. CODE § 5-85-40; 9 VA. ADMIN. CODE § 5-80-1605; 9 VA. ADMIN. CODE § 5-80-1705.

[10] VA. CODE ANN. § 10.1-1300 (Supp. 2016) (defining "air pollution"). This definition was adopted verbatim in the Board's regulations. See 9 VA. ADMIN. CODE § 5-10-20.

[11] See generally EPA's Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Final Rule, 74 Fed. Reg. 66496, 66498, 66499, 66534 (Dec. 15, 2009) (codified at 40 C.F.R. ch. I); Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, Proposed Rule, 79 Fed. Reg. 34830, 34833, 34841, 34842 (June 18, 2014) (codified at 40 C.F.R. pt. 60) (citing various reports, including the May 2014 report of the National Climate Assessment). See also Global Climate Change: Vital Signs of the Planet, NASA, available at http://climate.nasa.gov/evidence/ (last visited May 11, 2017).

[12] See, e.g., 9 VA. ADMIN. CODE § 5-80-370 (defining "[f]ossil fuel" as "natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material" and "[f]ossil fuel-fired" as "the combustion of fossil fuel or any derivative of fossil fuel, alone or in combination with any other fuel, independent of the percentage of fossil fuel consumed in any calendar year (expressed in mmBtu)." See also 9 VA. ADMIN. CODE § 5-80-1615(C) (defining, in the PSD Article, "[e]lectric utility steam generating unit" as "any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to any utility power distribution system for sale.").

[13] The Clean Power Plan offered states this type of mass-based cap. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, Final Rule, 80 Fed. Reg. 64662, 64664 (October 23, 2015) (codified at 40 C.F.R. pt. 60).

[14] VA. CODE ANN. § 10.1-1307(A).

[15] VA. CODE ANN. § 10.1-1306.

[16] VA. CODE ANN. § 10.1-1308(A).

[17] The validity of any regulation depends on the basis for it in the administrative record. The Board is required to act reasonably and to take due account of certain statutory factors in rulemaking. See Commonwealth ex rel. State Water Control Bd. v. Cnty. Utils. Corp., 223 Va. 534, 546 (1982) (holding that "the Board's authority to establish and enforce standards was at all times to require that rules be promulgated which are reasonable, practicable of attainment, based upon a fair weighing of the economic and social costs and benefits involved, and of uniform application to all affected parties similarly situated").