Consumer Reports Misleads on Virginia EV Bill

Great Seal of Virginia

by James C. Sherlock

Few media outlets are as influential with their readership as Consumer Reports or as active in soliciting direct contact of public officials on issues that management feels are important to that publication’s political values. That is their right, but false statements in support of their positions is a violation of public trust.

I received yesterday afternoon in my email a solicitation for political action in Virginia pushed out by Consumer Reports to all subscribers. It read:

Earlier this week, the Virginia House of Delegates approved an exciting piece of legislation that would allow the state to make it easier for consumers to buy fuel-efficient and electric vehicles at car dealerships in the Commonwealth.

That in turn could help drivers save money on fuel and reduce our air pollution: a win-win no matter how you slice it.

But before the bill can get signed into law, it must pass through the Senate by next week. Can you send a message to your VA Senator now and ask them to vote YES on House Bill 1965?

(This spot had a button with which to send the email)

Because of the pandemic, the legislative session is shorter than usual, so we don’t have much time. That’s why it’s critical for us to get as many messages as possible into the Senate so we can get this bill passed before the clock runs out.

Send a quick email now your Senator to ask them to pass House Bill 1965 to ensure Virginians can find next-generation cars, trucks, and SUVs at nearby dealerships.

Once you’ve sent your email, please consider forwarding this email action to friends and family in Virginia who might be able to do the same. With a quick deadline approaching, we need to ensure this critical bill is prioritized by our local lawmakers.

One problem. It isn’t true. Not even close.

The Bill

Here is the relevant section of HB 1965.

§ 10.1-1307.04. Low-emissions and zero-emissions vehicle standards.
A. As used in this section:
“LEV” means low-emission vehicle.
“ZEV” means zero-emission vehicle.
B. The Board may adopt by regulation and enforce any model year standards relating to the control of emissions from new motor vehicles or new motor vehicle engines, including LEV and ZEV standards pursuant to § 177 of the federal Clean Air Act (42 U.S.C. § 7507). The Board shall promulgate final regulations for (i) an LEV program for criteria pollutants and greenhouse gas emissions and (ii) a ZEV program. Such programs shall be applicable to motor vehicles beginning with the 2025 model year, or to the first model year for which adoption of such standards is practicable. The Board shall periodically amend any regulations adopted pursuant to this section to ensure continued consistency of such standards with the Clean Air Act.
C. The Board may work in cooperation with, and enter into agreements with, other states to administer the requirements of any regulations adopted pursuant to this section.
2. That the regulations required to be adopted by the State Air Pollution Control Board pursuant to § 10.1-1307.04 of the Code of Virginia, as created by this act, shall be exempt from the requirements of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Such regulations shall become effective upon filing with the Virginia Registrar of Regulations.
3. That the regulations required to be adopted by the State Air Pollution Control Board pursuant to § 10.1-1307.04 of the Code of Virginia, as created by this act, shall not become effective prior to January 1, 2024.
[ 4. That the State Corporation Commission may exclude energy jurisdictional retail sales related to zero-emission vehicles and hybrid electric vehicles from energy jurisdictional retail sales calculated pursuant to § 56-596.2 of the Code of Virginia. ]

Note: § 56-596.2. Energy efficiency programs; financial assistance for low-income customers governs the conduct of incumbent investor-owned electric utilities. Not sure why that appears here.

The Consumer Reports statement is false

Can anyone find in that proposed change to the law any words that would allow the state to make it easier for consumers to buy fuel-efficient and electric vehicles at car dealerships in the Commonwealth? Me either.

It is a false statement by Consumer Reports and a rather bold one. They would tell you their intentions are pure, perhaps justifying some “sloppy” wording.

HB 1965 will deny citizen participation in the rule-making process

The exemption in the bill from the Administrative Process Act is particularly egregious. It eliminates the existing rights of citizens to have a role in the crafting of regulations.

The left is going to get what they want from the State Air Pollution Control Board. The appointees were all picked by Democratic governors to give it to them.   As example, the current chairman directed the legal and litigation efforts of the Virginia office of the Chesapeake Bay Foundation.

This bill expands the writ of that board to EVs and shows the impatience of the left with public participation in processes they control by waiving the Administrative Process Act.

The Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), requires in part:

  • that prior to rule making an agency provide the Registrar of Regulations with a Notice of Intended Regulatory Action that describes the subject matter and intent of the planned regulation.  At least thirty days should be provided for public comment.
  • that each agency develop, adopt and use, public participation guidelines for soliciting the input of interested parties in the formation and development of its regulations.  Further, each agency should afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing.
  • that before delivering any proposed regulation under consideration to the Registrar, the agency submit a copy of that regulation to the Department of Planning and Budget.  Within forty-five days, the Department of Planning and Budget in coordination with the agency should prepare an economic impact analysis of the proposed regulation.
  • that before promulgating any regulation under consideration, the agency should deliver a copy of that regulation to the Registrar.  The agency should also file along with copy of regulation a summary of the regulation and a separate and concise statement of:
    – basis of the regulation,
    – purpose of the regulation,
    – substance of the regulation,
    – issues of the regulation, and
    – response of agency to the economic impact analysis.
  • executive review of proposed and final regulations procedures include:
  • review by the Attorney General to ensure statutory authority for the proposed regulations, and
  • examination by the Governor to determine if the proposed regulations are (a) necessary to protect the public health, safety and welfare and (b) clearly written and easily understandable.
    any person affected by and claiming the unlawfulness of any regulation, or party aggrieved by and claiming unlawfulness of a case decision have a right to review by an appropriate and timely court action against the agency or its officers or agents in the manner provided by the rules of the Supreme Court of Virginia.  Actions may be instituted in any court of competent jurisdiction and the judgments of the courts of original jurisdiction are subject to appeal to or review by higher courts.

All of those citizen protections are rendered inactive by HB 1965 in the case of LEV and ZEV standards. Justification? None offered.

Vote no on HB 1965

I have seen no public attempt to explain HB 1965’s denial of public participation in rule making. Indeed I have seen no attempt to explain why Virginia needs to regulate LEV and ZEV standards since they are subject to federal regulation.

The bill exists because Democrats think they can pass it, not because they can or will explain it.

So, Senators, please understand the basis of the automated emails you receive on HB 1965 was a false characterization of the bill by Consumer Reports.  And understand that more of your constituents now understand what is really in it.

Vote no on HB 1965.