California’s Electric Car Regulators Have No Authority In Virginia

Governor Glenn Youngkin has announced his steadfast determination to block the implementation of legislation, enacted by Virginia Democrats in March 2021, that would subject Virginia drivers to vehicle emission standards issued by government officials in the state of California.

The full impact of the 2021 legislation became clear recently when the California Air Resources Board voted to implement an executive order issued by California Governor Newsom that aggressively phases out gas and diesel-fueled vehicles and completely bans their sale beginning in 2035.

Governor Youngkin has denounced this “ridiculous edict” and made clear that “California’s out of touch laws have no place in our Commonwealth.” Republican leaders in our General Assembly have pledged to repeal the 2021 legislation and restore control of Virginia’s auto emission standards to the government of Virginia.

Prompt repeal of the Democrats’ 2021 legislation is necessary for two important reasons.

The obvious reason for repeal is the devastating economic and social disruption that would result from the forced phaseout and ban of gas- and diesel-fueled vehicles. Currently, there are approximately 8.4 million vehicles registered in Virginia. Of those, only about 20,500, or 0.27%, are electric.

It would cost a staggering amount of money to change out Virginia’s vehicle fleet and build the charging stations and other infrastructure needed to support an entirely new type of transportation technology.

And the enormous cost incurred would produce no benefit.

An increasing number of scientific studies by respected experts show that the forced or subsidized deployment of electric vehicles, solar panels, and wind turbines will have no measurable mitigating impact on the aggregate emission of carbon dioxide and other greenhouse gases said by environmentalists to be the primary cause of global warming.

Clearly, as a matter of policy, the Democrats’ 2021 legislation fails to pass even the most basic sort of benefit/cost analysis normally applied to evaluate proposed regulatory policies.

There is a less obvious but even more important reason to repeal the 2021 legislation. Repeal will nullify the Democrats’ unconstitutional delegation of binding authority to regulators in the California state government.

The Constitution of Virginia, like the U.S. Constitution, grants to the people’s elected representatives the authority to enact by legislation the binding laws that govern them. Article IV, Section 1 of the Constitution of Virginia declares that “The legislative power of the Commonwealth shall be vested in a General Assembly….”

Throughout the history of our Republic, we have debated the extent to which the legislative branch of a government can, in a lawfully constitutional manner, delegate to the executive branch of that same government the authority to make rules that have the same binding force and effect as the laws enacted by the legislature itself.

Under the Constitution of Virginia, the legislative branch of Virginia’s government has broadly defined power to delegate to the executive branch of Virginia’s government the authority to make binding rules. Article III, Section 1 of the Constitution of Virginia states that “Administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe.”

The fatal constitutional flaw in the Democrat’s 2021 legislation is that, in effect, it delegates authority to make binding rules, not to an agency created by the General Assembly, but instead to the California Air Resources Board.

The Democrats’ legislation directs the Virginia State Air Pollution Control Board to promulgate rules for a zero-emission electric vehicle (“ZEV”) program for motor vehicles beginning with the 2025 model year. The legislation orders the Virginia agency to draft its rules to “ensure that the percentage of ZEVs required to be delivered for sale under Virginia’s ZEV program is approximately equivalent to…the percentage required under California’s ZEV program….” We now know that, in 2035, California will require the Virginia percentage to be 100.

Since the Founding of our Republic, we have had many debates about the extent to which the legislative branch of the federal government or a state government can constitutionally delegate rule making authority to the executive branch within the same government.

But no one has ever seriously proposed that the legislative branch of one state government can constitutionally delegate rule making authority to the executive branch of another state government operating under an entirely different state legal system.

The electric-vehicle legislation is, indeed, ridiculous. It must be repealed at the earliest opportunity.

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