Delegating Emission Standards to California Is Unconstitutional

by Emilio Jaksetic

As Steve Haner noted in a December 10 post, “Now California Will Control Virginia’s Auto Sales,” the Virginia Air Pollution Control Board (VAPCB) adopted a regulation that places ultimate control of Virginia’s vehicle emission standards in the hands of the California Air Resources Board. Although the VAPCB acted pursuant to a statute enacted by the General Assembly in 2021, the regulation is unconstitutional.

Such a conclusion may seem odd given that the VACPB regulation was issued as a result of ostensibly valid steps. First, the General Assembly has the authority to set vehicle emission standards for Virginia. Second, the General Assembly has the authority to delegate to VAPCB administrative responsibility to implement the vehicle emission standards set by the General Assembly. Third, there does not appear to be any procedural irregularity in the VAPCB’s issuance of the vehicle emission regulation. However, those three actions culminated in a regulation that violates the Virginia Constitution.

Legislative power is vested in the General Assembly. Virginia Constitution, Article IV, Section 1. Although that power is broad, it is not unlimited; the General Assembly’s power to legislate is constrained by the Virginia Constitution and the U.S. Constitution.  Terry v. Mazur, 362 S.E.2d 904, 908 (1987).

The General Assembly can delegate legislative powers to executive branch administrative agencies, subject to any “express or necessarily implied prohibitions arising from the Constitution of Virginia or the United States Constitution.” Elizabeth River Crossings OPCO LLC v. Meeks, 749 S.E.2d 176, 188 (2013). Furthermore, “[The Virginia Supreme Court] has uniformly held that the power to exercise legislative authority may not be removed from the control of the local legislative representatives of the people.” County of Fairfax v. Fleet Industrial Park Limited Partbership, 410 S.E.2d 669, 672 (1991). And Virginia officials cannot agree “to contract away, abridge, or weaken any sovereign right” or “barter away, or in any manner abridge or weaken” any of Virginia’s sovereign powers. Taylor v. Northam (Virginia Supreme Court, September 2, 2021) at 23 (citing earlier decisions). See also Elizabeth River Crossings OPCO LCC v. Meeks, 749 S.E. 2d at 194-195 (a statute cannot empower public entities to abridge the Commonwealth’s constitutional police power).

The California Air Resources Board operates under the jurisdiction and control of California law. Under the reasoning of County of Fairfax v. Fleet Industrial Park Limited Partnership, the VAPCB’s regulation is unconstitutional because it removes control of Virginia vehicle emission standards from officials accountable to the people of Virginia and places it in the hands of a California administrative agency.

Furthermore, although the General Assembly can delegate power to the VAPCB to administer vehicle emission standards in Virginia, nothing in the Virginia Supreme Court’s decision in Elizabeth River Crossings OPCO LLC states, suggests, or implies that (1) the General Assembly can delegate legislative powers to executive branch administrative agencies of another State; or (2) the VAPCB can delegate any authority given to it by the General Assembly to an administrative entity in another State. To the contrary, any delegation by the General Assembly or the VAPCB to an administrative agency of another State would fall within a necessarily implied prohibition of the Virginia Constitution.  Why? Because any such delegation would have the practical effect of

(a) surrendering a portion of the sovereignty of the people of Virginia (Virginia Constitution, Article I, Section 2; and U.S. Constitution, 10th Amendment) to the control of another State;

(b) giving control of Virginia’s police power over vehicle emissions to another State; and

(c) forcing Virginians to make vehicle purchases constrained by legal standards set by another State, including future amendments and changes made to those legal standards without any consultation with, or consent by, the General Assembly.

The reliance of the General Assembly and VAPCB on Section 177 of the Federal Clean Air Act does not remove their actions from the strictures of the Virginia Constitution. Under U.S. Constitution, Article VI, Clause 2, federal laws enacted pursuant to the U.S. Constitution have supremacy over State law (including State constitutions). However, Section 177 of the Federal Clean Air Act does not require or compel any State to adopt California’s vehicle emission standards. It merely states that a State may decide to follow the example of California with respect to vehicle emission standards, and by doing so a State can avoid having to submit its proposed emission standards to the Environmental Protection Agency for review. Nothing in Section 177 requires a State to make a decision to adopt California’s emission standards in a manner that violates its State constitution.

There is an important legal distinction that the General Assembly and the VAPCB ignored or failed to recognize.

It is not unconstitutional per se for the General Assembly to decide a specific law of another State is worthy of emulation. The General Assembly has the constitutional authority to enact a statute that copies a specific existing statute of another State pertaining to vehicle emission standards. However, the General Assembly has no constitutional authority to enact a statute that (1) gives another State de facto control of Virginia law pertaining to vehicle emission standards, (2) allows future changes in the other State’s regulations on vehicle emission standards to automatically be applied to Virginians without express ratification through the Virginia legislative process to each of the future changes, or (3) is otherwise violative of the Virginia Constitution.

There is no reason to doubt that the General Assembly acted with good intentions when it enacted the 2021 statute to regulate vehicle emissions. But, good intentions and administrative convenience do not justify or excuse legislation that results in a violation of the Virginia Constitution.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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41 responses to “Delegating Emission Standards to California Is Unconstitutional”

  1. LarrytheG Avatar

    If the car manufacturers were not building battery plants like mad and committing to similar numbers of EV, one might wonder what the outcome would be. But if car manufacturers are going to make less and less ICs , then IC’s are going to get more expensive while EVs will get less and EVs will become the preferred option in California and man urban places where battery range is less an issue and chargers more and more available.

    As long as the country and Virginia is so closely divided , many states, possibly including Va will “roll back”.

    Both R’s and D’s think they know the sentiment of the electorate on climate change and the advent/need for EVs.

    We’re going to find out in the near future which one is right!

    And of course, it will be interesting to see where Youngkin comes down on this.

    1. James Kiser Avatar
      James Kiser

      No one is asking me the tyranny of the minority.

    2. Stephen Haner Avatar
      Stephen Haner

      The total glaring flaw in Larry’s star-struck dream is, gee, if the market is moving that fast on its own, why all the government sticks, carrots and mandates?

      1. LarrytheG Avatar

        Not much different than how seats belts and gas mileage standards and air bags came about. The govt was involved and now look where we are. We’re not going back, right?

        Do you consider GM “star-struck” or run by a bunch of leftists? How about Walmart?

        How about Volvo Trucks?

        Volvo electric trucks to be produced at NRV plant in early 2021

        The new Volvo VNR Electric truck has zero tailpipe emissions and will be produced at Volvo Trucks North America’s Pulaski plant.
        Volvo Trucks North America’s plant in Pulaski County will manufacture its new battery-powered VNR Electric truck model starting early next year, the company announced Thursday.

        The largest Volvo truck plant in the world, the Dublin facility currently employs close to 3,000 people and builds heavy-duty trucks of multiple models. The Volvo Class 8 VNR Electric heavy-duty truck, entering the North American market next year, runs on battery electric power and produces zero tailpipe emissions.”

        Luddites and Naysayers… like warts and ticks…

        You guys kill me. Everywhere you look, we’re moving to EVs and yet ya’ll stubbornly refuse to accept the realities.

  2. James Kiser Avatar
    James Kiser

    Since when has the Constitution mattered?

  3. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Without getting into the merits of EVs or the law and regulation, I disagree that the law and regulation is unconstitutional. The Commonwealth has not “contracted or bartered away its sovereign powers.” The Commonwealth of Virginia has not entered into a contract or agreement of any sort with the state of California to establish emission standards that will be effective in Virginia. Virginia has adopted legislation and ensuing regulation that provides that it will implement whatever regulations that California has. The Commonwealth of Virginia has the sovereign authority to change its mind at any time. Bad policy is not necessarily unconstitutional policy.

    1. LarrytheG Avatar

      I too, don’t see how this really differs from adopting a standard based on a non-Virginia entity. Perhaps like building code or fire code or safety code standards.

      Or even like vehicle title or gun rules or a wide variety of agreements with other states – that can be repealed at any time by the legislature or in some cases by EO.

      As you say, Virginia is free at any time to change it’s mind. They are not “bound” if they disagree with newly added standards.

      But nowadays, everybody and their dog wants to challenge the “Constitutionality” of something… so no doubt, someone with money and time will do it.

      And Texas proved (on abortion) that there is still “creativity” in State law versus Federal laws…

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        You are correct. I was coming back to update my comment on that very point. The state’s regulation regarding the Uniform Statewide Building Code includes this statement: “Chapters 2 – 35 of the 2018 International Building Code, published by
        the International Code Council, Inc., are adopted and incorporated by
        reference to be an enforceable part of the USBC.” The action to incorporate California’s regulation by reference is no different from this incorporation of a document published by a non-governmental entity.

        1. Stephen Haner Avatar
          Stephen Haner

          Well, we have representation and a vote on the building code. It is different.

  4. William O'Keefe Avatar
    William O’Keefe

    The California provision in the Clean Air Act was justified at the time the Act was passed because California had a horrible ozone problem. But with the passage of time and advanced auto technology that justification became less valid. Congress created a monster and has refused to correct its error. Every time it appears that the authority will be withdrawn, California sues or threatens to sue. As long as that provision remains, other states can “opt in”to the California program which is unnecessarily expensive and of dubious effectiveness.

      1. William O'Keefe Avatar
        William O’Keefe

        Larry, read the Clean Ir Act. There is a specific provision for California. As usual, your reply is off the point.

        1. LarrytheG Avatar

          The point I was making is that many urbanized areas across the country STILL have air quality problems and for that reason, may still want to use California standards because most of the population of the state usually lives in the urban regions.

          Also, if an urban region DOES have air quality problems,it can affect their ability to get and use transportation and transit funding – see “non-attainment”.

          The air is cleaner overall, but urban regions still have unhealthy air from auto emissions at some times.

          your statement: ” the California program which is unnecessarily expensive and of dubious effectiveness.” is not backed up by the data and that’s what I am pointing out.
          yours is an editorial comment – in your opinion but not in the opinion of the EPA which still lists many urban areas as having unhealthy air quality at times.

          You guys just fight the standards from when they are first proposed and later on even when there are still air quality issues. It’s what ya’ll do!

          The bottom line IMHO is that we have cleaner air not only in California but other states urban areas BECAUSE California led the way and other states followed.

          Now we’re on to EVs and again, California is leading the way and other states following.

          but the long-standing opponents are still opposing! It’s what they do!

          1. William O'Keefe Avatar
            William O’Keefe

            EPA has continued to tighten the ozone standard which contributes to the number of areas that are in non-attainment. Indeed, the current standard is at or below background levels in some areas. The fact of the matter is that air quality keeps getting better and ozone levels and its precursors keep declining. Improvements in vehicle technology and changes in gasoline standards have made mobiles sources a smaller part of the ozone problem. So, recommending the California program for many areas is like shooting an ant with a shotgun. In oher words it’s overkill.

          2. LarrytheG Avatar

            Air quality HAS steadily improved, but EPA is still showing bad air quality in some urban areas at some times of the year.

            According to them, bad air quality has direct consequences on some people , older, infirm, those with compromised immune systems , etc…

            Do we not believe them?

            And I’m curious. Did you support the Clean Air Act initially and subsequently when standards were updated? So you used to support but now do not because it’s gone to far? I know initially there was significant opposition based on claims/concerns that regulation would harm the economy.

            Isn’t that pretty much the way regulation has worked over time?

            That some folks pretty much oppose regulation on the same grounds – economic harm?

            And the other side, supports regulation to mitigate harm to people’s health?

            I just see that the CAA has accomplished a significant amount of good without real damage to the economy .

            Do you not agree?

          3. William O'Keefe Avatar
            William O’Keefe

            So, what’s your point. The issue is the California program. It is preferable if it is the most cost-effective option for controlling ozone in Virginia. Other states can make their own decisions. You should quit the rambling stream of consciousness unless you have done a cost-benefit analysis.

  5. Paul Sweet Avatar

    From what I understand the feds require autos to meet either the federal emissions standards or California standards (for internal combustion engine vehicles) at the time of sale. No other state is allowed to make any modifications because it would be a nightmare for manufacturers to have to meet 50 different sets of emissions standards. I don’t see a significant problem with Virginia choosing to go with the California standards for new cars instead of federal standards, as long as we can go back to the federal standards at any time.

    I agree that giving CARB authority to set minimum percentages of “zero emissions vehicles”, catalytic converter replacement, emissions inspections, and other ongoing maintenance standards is delegating too much authority out of state. I believe that the EPA sets standards for emissions inspections.

    BTW, until the electric grid is 100% wind, solar, hydroelectric, & nuclear there is no such thing as a “zero emissions vehicle” – the emissions just occur at the power plant instead of the vehicle’s tailpipe.

    Building codes aren’t comparable because Virginia has several building officials on the code writing committees, and the Dept. of Housing & Community Development makes significant modifications to the International codes before adopting them 3 years after the International Code Council adopts them.

    1. LarrytheG Avatar

      re: ” BTW, until the electric grid is 100% wind, solar, hydroelectric, & nuclear there is no such thing as a “zero emissions vehicle” – the emissions just occur at the power plant instead of the vehicle’s tailpipe.”

      Totally agree, BUT, emissions are LOWER when they are generated at a central site and the energy moved as electricity. It’s STILL a reduction in emissions.

      re: “Building codes aren’t comparable because Virginia has several building officials on the code writing committees, and the Dept. of Housing & Community Development makes significant modifications to the International codes before adopting them 3 years after the International Code Council adopts them”

      but the point is that Virginia ultimately has the ability and authority to agree to the standards or not.

      If the standards exceed what Virginia is willing to do, Virginia can “decouple”.

      The idea that another state “controls’ Virginia is simply not true. It’s yet more false hyperbole from the “anti” folks.

      Virginia decides what to adopt or not and when, unless it is Federal law that applies to all states.

      The basic issue with vehicles is Manufacturers having to build to different specs because of state-specific standards. Early on, there were cars manufactured that were “California emission standards” and those cars were different from other states – and it not only messed up the manufacturers’ production runs, but it messed up buying and selling used cars without California standards between California and other states. There were and are also emission standard issues between urban regions and non-urban regions in the various states.

      Stafford county and other Nova jurisdictions have to have emission checks for state inspections that other jurisdictions in Va do not have to do.

      This is an example of how badly Conservatives would mess up governance from a practical perspective … if they could IMHO AND they are supposed to be the party that is “friendly” to business! Their solution would be to get rid of the standards altogether!

    2. energyNOW_Fan Avatar

      Some especially Japanese car makers (Toyota, Honda) have tended to make cars 50-state cars. So my 2006 Prius was a CARB car bought in Virginia. That car was exempt from Va./NoVA emissions testing, which was my one “subsidy”. US auto makers have tended to make different cars (re: emissions) for California. I am a little out-of-date now, so I am not sure current scenario.

  6. Stephen Haner Avatar
    Stephen Haner

    Gives me an excuse for an update. The CARB has now fleshed out its plan to eliminate all but “zero emission” vehicles on new car lots:

    The draft regulations issued by the California Air Resources Board lays out a 10-year schedule of requirements for reducing new-model ICE sales. The plan starts in 2026, when manufacturers would have to ensure that 26% of sales in the state were of zero emissions vehicles and ends with the 100% requirement for 2035 and subsequent years.

    ZEVs would comprise 34% of sales in 2027, 43% in 2028, 51% in 2029, 61% in 2030, 76% in 2031, 82% in 2032, 88% in 2033 and 94% in 2034. As it now stands, the same would apply for Virginia new car and truck sales.

    As I understand it, only ZEV will left. Also prohibited will be any hybrids, no matter how efficient, or the ultra high efficiency internal combustions that now exist. CNG? No. EVs and perhaps hydrogen.

    Somebody is free to sue, but I honestly think even many of the Democrats had no freaking idea what that bill did and repeal is worth a try.

    1. James Kiser Avatar
      James Kiser

      Do you think democrats care ? Climate change is a canard and always has been.

      1. LarrytheG Avatar

        EVs are fairly new technology and recharge times are coming down fast – to even 30 minutes for 100 mile range or better.

        TVs went from CRT to LED in less than 10 years. They’re predicting 5 minute charge times soon.

        If that comes to be and EVs end up less expensive to buy and maintain – they will be adopted like LED TVs have been – IMHO of course.

        The problem with the naysayers is they lack vision as well as acceptance that much of the world including the business world believes we need to transition to EVs. The naysayers are a distinct minority pretty much aligning with the skeptics and deniers.

        1. John Harvie Avatar
          John Harvie

          You will find this sobering:

          There will be a massive load on the grid at high charging currents such as 80 amps at 240 volts for rapid charging when there are tens of millions of EVs to be charged some day.

          One can be a realist without being a modern day Luddite, if I may stretch the word a bit.

          It’s going to take the requisite number of coulombs to do the charge regardless of the voltage and amperage.

          1. Merchantseamen Avatar

            The “experts” on here (they know who they are) forget about the amount of heat generated by charging at higher amps. Risk of fire, material breakdown, battery life is shortened. And the “renewables” will not be able to handle the load. If they get their way they will send us back to the dark ages.

          2. LarrytheG Avatar

            re: ” Think of this charger as the equivalent to your dryer or other large appliance. Tesla suggests owners install a Level 2 charger in their home or garage if they can. This is fairly easy for an electrician or specialist to come and install.’

            So we KNOW that the grid can already meet the demands of electric ranges, HVACs and dryers even at the same time, sometimes.


            And in the late and wee hours of the night , very few ranges and dryers are running at which time the chargers can be drawing.

            What’s wrong with that thinking?

            See, it’s not so much Luddite but naysayer, i.e. folks who are opposed to the technology with not so good reasons, ditto for solar and wind. Good and legitimate supplies of grid power that some folks oppose for not real good reasons.

            Do we think all the major worlds car companies would commit to EVs if they thought it was not also feasible grid-wise?

            So the article below says the overload idea is a myth…

            I can find others that say similar…

          3. James Kiser Avatar
            James Kiser

            First off stop comparing the US to Germany or even Europe. It take longer to drive to drive from NoVA to Fla than to drive across Europe from the Baltic sea to the Mediterranean. Second 80 amp circuits are a far cry from a 30 amp circuit.

      2. John Martin Avatar
        John Martin

        “Climate change is a canard and always has been.” Can’t be much more wrong than that

        1. James Kiser Avatar
          James Kiser

          prove me wrong the claim that tornado’s are worse is a lie look at the numbers over the years. There have been far worse tornados over 100 years ago. Was that due to methane generated by horses and cows? Yes climate change is a canard stop listening to Kerry Mann and Gore all liars and all people who use far more energy than 20 families.

  7. John Harvie Avatar
    John Harvie

    Should be interesting how the grid will support all the new distributed load from required charging stations, how many service stations other than the giants like Wawas will/can make the rework investment in facilities, and how the public will react to what I expect will still be some time differential between filling a gas tank and charging a car battery.

    Hopefully EVs’ ranges will be much better and charging times significantly lower by then.

    Loss of gas tax may introduce some fiscal issues.

    1. LarrytheG Avatar

      The grid would well support if solar farms are approved. Those charging stations are also going to become a competitive edge for the places that have them and a competition issue for those that don’t.

      ” WalMart installs EV supercharging stations”

      ” Electrify America chargers at Walmart stores are available to the public for use 24 hours a day and feature 150 kilowatt (kW) and 350kW DC fast chargers – currently among the most powerful EV chargers available on the market. Chargers at this power can charge capable vehicles at speeds of up to 20 miles of range per minute. The Electrify America charging stations at Walmart stores offer CCS connectors and CHAdeMO chargers, meaning almost every EV model on the road today can charge there.”

      ” Setting Records, Walmart Continues Moving Toward Becoming a Totally Renewable Business”

      Walmart says it will power it’s stores (and the chargers) with 100% wind/solar by 2035.

      When you read things like this and then listen to the “anti” folks, one does wonder who is right.

      1. James Kiser Avatar
        James Kiser

        You have to upgrade all charging systems,all transmission lines and local lines and all homes.

        1. LarrytheG Avatar

          yes, we do and we have to anyhow – the grid needs to be modernized.

        2. John Harvie Avatar
          John Harvie

          You are correct AND it is sobering.

          Years ago when I was in the business, I forecasted as more lines were placed underground that future upgrading would pose significant investment issues.

      2. John Harvie Avatar
        John Harvie

        OK, substitute Walmart for Wawa if you like in my post. Maybe I should have been more specific by not mentioing the investment impact on mom and pop gas stations.

        In some areas the NIMBYs are opposing the proliferation of solar farms. I predict this issue will grow in importance in many areas as will the negativity associated with wind.

        Notice that I ended on a positive note. My purpose was merely to raise what I believe are potential issues.

        1. LarrytheG Avatar

          Mom & POPs continue to be at severe competitive deficits on all manner of things beyond just EV charging stations.

          Anywhere that Walmart doesn’t have it’s minimum population demographics, Dollar General builds and Mom & Pops are a dying breed in the 21st century.

          There are so many places SOLAR .. CAN be that is compatible that it’s a done deal. The anti-climate folks want to make it an issue but the funny thing to me is that no such angst is expressed with regard to Nukes and the hundreds of miles of pipeline corridors, etc…

          Even in rural areas, solar is often enclosed in vegetative buffers and soil berms. You don’t even know it’s there unlike things like pig and poultry farms and spraying of sewage on farm fields.

          It really is inconsistent to hold solar to a different standard than nukes, pig farming, pipeline corridors, and “biosolid” application, landfills, etc.

          solar is relatively innocuous compared to almost all of those other uses.

          If you ask someone to choose between solar next door or a nuke – no contest!

    2. James Kiser Avatar
      James Kiser

      Charging times on avg are 3 hours

  8. Nancy Naive Avatar
    Nancy Naive

    Two types of dumb kids in school; those who copy off their friend’s test and those who copy from the smart kid’s test.

    Which kind are you?

  9. how_it_works Avatar

    A while ago I was near a vehicle that was obviously running rich. It stunk. I wondered if it even had a functional catalytic convertor in it.

    Was this some hooptie owned by someone who couldn’t afford anything better?


    It was a US mail truck.

    Apparently, the junk bucket that delivers your mail is somehow exempt from the same emissions requirements that the vehicles us peons drive around are.

    1. LarrytheG Avatar

      yeah, I see where USPS is committing to only 10% of their fleet being EV. I believe most rural carriers use their own vehicles. But the fact that they’re not committing to 100% EVs deserves discussion as to why and if the USPS believes that it cannot perform it’s mission with 100% EV fleet.

  10. energyNOW_Fan Avatar

    Quoting, there are a growing number of CARB states including California, Connecticut, Colorado, Delaware, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Washington D.C. Most of these states have strict emission standards and require vehicles to be tested annually or biennially (every other year).

    The “growing” is a little overstated, relatively new are DE, CO. A few states have quit, I think NH and AZ. Some states like PA, WA, DE were not what I call “full CARB” because they have not adopted all of the CARB rules. So for example in the past, if you had owned a Toyota Prius, only the “full CARB” states got the longer CARB warranty on the battery.

    It is not clear to me that being a CARB state mandates the adoption of California’s draconian gasoline vehicle ban schedule.

    In short, to my knowledge Pennsylvania has not seen a problem with being in CARB, and is not telling residents that gaso vehciles are banned based on California dreams.

    So I would ask, what are the exact measures that Virginia Dems have committed us to, and why is that any different to say our PA, MD neighbors?

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