by Dick Hall-Sizemore
One of Gov. Glenn Youngkin’s top priorities has been to extricate the Commonwealth from participation in the Regional Greenhouse Gas Initiative (RGGI). One of the top priorities of the Democrat-controlled General Assembly has been ensuring that the Commonwealth participates in RGGI.
For those readers unfamiliar with the purposes of RGGI and how it functions, along with the pros and cons of membership, those topics have been covered extensively in this blog. See here, here, and here. This article will focus on the constitutional struggle between the governor and the legislature.
Brief legislature history
In 2020, the General Assembly authorized the director of the Dept. of Environmental Quality (DEQ) to establish a market-based energy allowances trading program and the Governor to include the Commonwealth in RGGI. The Air Pollution Control Board (“the Board”) and the Governor exercised their authority to act, and Virginia became a RGGI participant on Jan.1, 2021.
When he took office in 2022, among the first executive orders issued by Gov. Younkin was one directing the DEQ director and the Board to begin taking steps to end Virginia’s participation in RGGI. The Board adopted the final repeal of the RGGI regulations in July 2023, to be effective at the end of the year. Environmental groups sued and those suits are still pending in court.
The next stage of this saga came as the new Democratic majority in the 2024 General Assembly adopted language in the budget bill prohibiting the use of state funds to “impede” the state from rejoining the RGGI and directing all relevant agencies to take steps to immediately rejoin the RGGI and continue participation. Although some Democrat legislators and environmentalists believe the language is vulnerable to a gubernatorial veto, court precedents and recent actions would augur a more favorable outlook on their account.
There are two constitutional provisions at issue—the “single object” rule and the governor’s budget item veto power.
The single-object rule
The Virginia Constitution stipulates that “no law shall embrace more than one object, which shall be expressed in its title.” (Article IV, Sec. 12). The foremost authority on the Virginia Constitution, A.E. Dick Howard, explained that historically the purpose of the provision has been to prevent “log-rolling” and to serve notice to legislators, the public, and those who might be affected by the legislation of the subject matter of the bill. (Commentaries on the Constitution of Virginia, p. 534.)
Rather than become immersed in trying to define the extent to which the subjects of a bill have to be related in order to constitute one object or require the legislature to pass “separate acts on a single subject,” Virginia courts have focused on the second phrase of the constitutional provision: “which shall be expressed in its title.”
The leading case on this subject is an 1895 opinion of the Virginia Supreme Court, Commonwealth v. Brown, 91 Va. 762. (Although the current Virginia Constitution became effective July 1, 1971, much of its language, including this provision, was included in previous constitutions of the state.) In Brown, the Court said this provision should be “liberally construed, so as to uphold the law, if practicable…. All that is required … is that the subjects embraced in the statute, but not specified in the title, are congruous, and have natural connection with, or are germane to, the subject expressed in the title.”
The Virginia Supreme Court has consistently adhered to this view of the single-object rule. In Commonwealth v. Dodson, 176 Va. 281 (1940), an opinion that will figure prominently later in this article, the Court cited the following passage from a case in another state in upholding the inclusion of certain items in an appropriation act:
The generality of the title of an act is no objection, provided only that it is sufficient to give notice of the general subject of the proposed legislation and of the interests likely to be affected.
A more recent example is the Court’s opinion in Marshall v Northern Virginia Transportation Authority, 657 S.E. 2d 71 (2008). Despite the bill amending and adding sections in 12 titles of the Code of Virginia and having 23 separate enactment clauses, the Court found that the legislation being challenged did not violate the single-object rule. Citing Brown and Dodson, as well as other opinions it had issued, it found that the diverse topics “are congruous and have a natural connection with the subject of transportation expressed in its title.”
As one analyst summarized the issue, “the Supreme Court of Virginia has been extremely deferential to the General Assembly” on this issue. If a provision of a bill is related, however indirectly, to the language included in the bill’s title, it does not violate the single-object rule.
An appropriation act, by its very nature, is wide-ranging in its scope. The title usually begins with the phrase, “An Act for all appropriations….” That in itself is very broad. However, both the legislature and the governor have, in recent years, stretched the single-object rule beyond recognition. For example, the 2023 Appropriation Act included provisions relating to the home growing of marijuana, regulation of hemp products, regulation of “games of skill,” the definition of lab schools, and exempting a specific private school from certain regulations. HB 29, (the “caboose” budget bill) introduced by the governor in the 2024 session, included provisions creating an authority empowered to issue billions of dollars in bonds. None of these provisions dealt with appropriations and, just from reading the title of the bills, no one would have known these provisions were in them.
In recent years, neither the governor nor the legislature has chosen to challenge provisions such as these in court. It would be interesting, indeed, if the Supreme Court were called upon to rule whether such provisions violated the single-object rule.
Notwithstanding these seeming violations of the single-object rule, the RGGI provision does not fall into that category. The provision is not a standalone enactment clause (“rider”) but is incorporated into the budget language associated with DEQ. The amendment declares:
Notwithstanding any other provision of this act, or any other law, no expenditures from general, special, or other non-general fund sources shall be used to take any action that impedes or otherwise interferes with Virginia’s rejoining of the Regional Greenhouse Gas Initiative or continued participation therein.
This language is related to the object of the bill, i.e. appropriations, in that it places a condition on how appropriations can be used. The Court has routinely recognized that the legislature can direct how appropriations must be used or not be used. (See Brault v. Holleman, 217 Va. 441 (1976).) The appropriations used to support the Air Pollution Control Board in its work are contained in various sections of the Appropriation Act, from DEQ to the Office of the Attorney General to the Registrar of Regulations. To borrow the phrase used by the Court in its Dodson opinion, the work of the Air Pollution Control Board is “tied up with other budget provisions.” In summary, this provision does not seem to violate the single-object rule.
Item veto
Article V, Section 6(d) of the Virginia Constitution vests in the governor the power to “veto any particular item or item of an appropriation bill….”
Dodson is the leading case dealing with the item veto. The organizational structure of the budget bill and Appropriation Act consists of “items” and “sections.” The Supreme Court in its Dodson opinion made it clear that the term “item” in the constitution does not refer to any organizational construct. (The Court in its opinion many years later in Gilmore v. Landsidle, 252 Va. 383 (1996) made this point explicitly.)
In Dodson, the Court declared, “An item is an appropriation that is an indivisible sum of money dedicated to a stated purpose.” Based on this definition, the RGGI provision is not an “item”; it does not appropriate or designate “an indivisible sum of money.”
The RGGI language is a condition attached to funds contained in the budget. The Court in Dodson said plainly, “We think it is plain that the veto power does not carry with it power to strike out conditions or restrictions.” Later, in Brault, the Court expanded on the Dodson precedent: “Where a condition is attached to an appropriation, the condition must be observed… he [the governor] cannot veto the condition without also disapproving the appropriation.” In the current situation, it would be impossible, from a practical perspective, to veto the appropriation. For example, to veto the amount of the appropriation for the Attorney General’s office that might be used to support the Air Pollution Control Board in any effort to keep the state from joining RGGI, the governor would have to veto the entire appropriation for the office.
Interestingly, the situations involved in the item vetoes overturned in the Dodson case are similar to the current RGGI issue. At the conclusion of the 1940 General Assembly session, Governor Price vetoed seven items in the Appropriation Act. One of those vetoes was of language declaring that no appropriation should be used for the investigation of county government. The Court said, “Plainly this is a condition and not an item. As an item, it can not be vetoed.” Another provision that the governor tried to veto prohibited the Commission on Fisheries from using any of its appropriation to maintain or operate a specific boat it had recently purchased. The Court ruled, “This is not an item…. Here, again, as an “item,” this veto was unauthorized.”
Although they were not litigated, these precedents were used very recently to negate attempts by the governor to veto specific provisions of the Appropriation Act. In 2016 and 2017, the General Assembly included language in the budget bill prohibiting the use of general or non-general funds to expand Medicaid coverage under the federal Affordable Care Act. In 2017, in another section of the budget bill, it included language placing a condition on projects undertaken pursuant to the Public Private Transportation Act. Gov. Terry McAuliffe issued vetoes for these provisions. In response, Paul Nardo, the Clerk of the House of Delegates and Keeper of the Rolls, wrote to the governor that, because those item vetoes were not allowed under the Constitution, he would not publish them. As justification for this decision, Nardo cited the Brault opinion, which said that a governor cannot “veto the condition without also disapproving the appropriation.”
(As the Keeper of the Rolls, the Clerk of the House is responsible for enrolling all legislation, which entails preparing the final official copy of each bill. If the Clerk does not include a notation in the Appropriation Act that the Governor has vetoed a particular section, the veto is not effective. See page 176 of the 2017 Appropriation Act for an example of how an item veto is set out in the Appropriation Act.) See here for Nardo’s 2016 letter and here for is 2017 letter.
The final recent example is directly applicable to the current language on RGGI included by the Democrats in the 2024 budget bill. In 2019, with majorities in both houses, the Republicans included the following language in the budget bill:
Notwithstanding any other provision of the Code of Virginia, no expenditures from the general, special, or other non-general fund sources from any appropriation by the General Assembly shall be used to support membership or participation in the Regional Greenhouse Gas Initiative (RGGI) until such time as the General Assembly has approved such membership as evidenced by language authorizing such action in the Appropriation Act….
Although environmentalists urged Gov. Northam to veto the language, he declined to do so after his advisers told him he lacked the authority to do so. Del. Kirk Cox (R-Chesterfield), Speaker of the House, praised the governor’s deference. “I am pleased the Governor is recognizing the constitutional authority of the General Assembly to set conditions and restrictions on appropriations,” he said in a press release.
Now, the tables have turned. Based on existing Virginia Supreme Court precedents, recent actions used by General Assembly Republicans to negate gubernatorial item vetoes, and the confirmation of a Republican House Speaker that the legislature can set conditions and restrictions on the use of appropriations without fear of a gubernatorial veto, it seems that the RGGI provision, using language borrowed from the Republicans and included in the 2024 budget bill passed by the General Assembly, is not an item subject to the governor’s veto. Nevertheless, given his expressed strong opposition to the provision, it would not be surprising if Gov. Youngkin issued a veto against it. The General Assembly has expressed similarly strong support of the provision and, therefore, almost certainly would ask the Virginia Supreme Court to block the veto.
Note on sources:
I am much indebted to this article for shaping my thinking on this issue and pointing me to the relevant Virginia Supreme Court opinions.
For an interesting analysis of the Virginia governor’s general veto power and its use by Gov. George Allen, see here.
