Does Virginia have to adopt California's Advanced Clean Cars Program II rules for model years 2026 and beyond?

Plain-English summary

Governor Youngkin and Senator McDougle asked the AG whether Virginia's State Air Pollution Control Board was required to adopt California's Advanced Clean Cars Program II (ACC II) for model years 2026 and beyond. ACC II is California's successor regulatory package to its earlier Advanced Clean Cars Program (ACC I). It tightens low- and zero-emission vehicle (LEV and ZEV) requirements over time and culminates in a phased ban on the sale of new gas-only passenger vehicles by 2035.

AG Miyares concluded the Board has no statutory duty to adopt ACC II. The General Assembly's 2021 Clean Cars Act required the Board to adopt regulations "pursuant to Section 177 of the federal Clean Air Act" mirroring then-current California standards. Section 177 of the Clean Air Act lets a non-California state opt into California's emissions standards once those standards have received an EPA waiver and are in place at least two years before the affected model year. ACC I was the program operative at the time of the 2021 Act. Virginia's statute does not contain "rolling adoption" language committing the Board automatically to whatever successor California issues. Adopting ACC II would be a discretionary regulatory decision, and the General Assembly has not commanded it.

What this means for you

If you serve on the State Air Pollution Control Board or work at DEQ

You retain regulatory discretion over whether to start a rulemaking adopting ACC II. The opinion does not forbid that adoption; it confirms there is no statutory obligation to do it. Any adoption would proceed through the Virginia Administrative Process Act with public notice and comment, and would require the Board's affirmative finding of legal authority and policy justification.

If you sell or service vehicles in Virginia

The 2026 and later model years are not currently subject to California ACC II standards in Virginia by force of state law. The federal EPA emission standards apply to 2026 model year vehicles. If the Board chooses to adopt ACC II in the future, Virginia would shift to the California standards two years after the Board's adoption (per § 177's two-year notice rule), but until then, plan to federal standards.

If you are buying a vehicle in Virginia

The mix of vehicles available to you for model year 2026 reflects federal standards, not California's. If the Virginia Board later adopts ACC II, the share of LEV and ZEV models on dealer lots would shift toward higher percentages over time, but for now manufacturer compliance obligations track the federal floor.

If you are a state legislator considering changes to Virginia emissions law

The opinion creates a clean baseline. If the General Assembly wants Virginia to track California standards prospectively, it can amend the Clean Cars Act to either (a) adopt ACC II by name, or (b) add rolling-adoption language committing Virginia to track future California waivers. Without such an amendment, the Board has discretion but no duty.

Common questions

Q: Why does California get to set its own standards?
A: § 209(b) of the federal Clean Air Act allows the EPA to grant California a waiver from federal preemption because California adopted its own emissions program before the Clean Air Act's 1967 enactment. California must show that its standards are "in the aggregate, at least as protective of public health and welfare as" applicable federal standards, and that compelling and extraordinary conditions exist. California is the only state with this authority.

Q: How can other states adopt California standards?
A: § 177 of the Clean Air Act lets any state that has a State Implementation Plan with an air-quality nonattainment area adopt and enforce California's standards as long as (1) the state's standards are identical to California's standards for which an EPA waiver has been granted, and (2) the state adopts those standards at least two years before the model year takes effect. § 177 is the door states walk through to opt into California's program.

Q: What did Virginia adopt in 2021?
A: The Clean Cars Act of 2021, codified primarily at § 10.1-1307.04, required the Board to adopt regulations "pursuant to Section 177 of the federal Clean Air Act" mirroring California's then-applicable LEV and ZEV standards. Those were the Advanced Clean Cars I standards. The statute did not roll forward to ACC II by its own terms.

Q: Could the General Assembly amend the law to require ACC II adoption?
A: Yes. The General Assembly can direct the Board to adopt any standards within the scope authorized by § 177. The current question is what current Virginia law requires, and the AG concluded the answer is ACC I, not ACC II.

Q: Does this opinion ban Virginia from ever adopting ACC II?
A: No. The opinion answers a narrow question about what the Board "is required" to do. The Board could initiate a rulemaking to adopt ACC II if it found authority and justification to do so. Virginia general environmental and air-pollution authorities (Va. Code § 10.1-1307 series) provide rulemaking authority that, depending on its scope, might support adoption.

Q: What happens if the EPA revokes California's waiver?
A: § 177 lets states opt into standards "for which a waiver has been granted." If the EPA revokes a waiver, downstream states would face questions about whether their § 177-based regulations remain enforceable. The opinion does not address this scenario directly.

Background and statutory framework

The Clean Air Act, 42 U.S.C. §§ 7401-7671q, divides authority over motor vehicle emissions between the federal government and the states. § 209(a) preempts states from adopting emissions standards. § 209(b) creates a single exception for California, conditioned on EPA waiver. § 177 then permits other states to opt into California's standards, conditioned on (a) identicality and (b) at least two years' lead time before the model year. The structure was designed to prevent fifty inconsistent state regimes while allowing the early-mover state (California) to lead and willing late-movers to follow.

Virginia's 2021 Clean Cars Act took the § 177 path. It directed the Board to adopt regulations implementing California's LEV and ZEV standards, with a forward-looking implementation schedule keyed to ACC I. ACC I covered model years 2015 through 2025. California finalized ACC II in 2022, expanding the LEV/ZEV obligations through 2035 and eventually banning new sales of gas-only passenger vehicles. ACC II requires its own EPA waiver and (under § 177) at least two years' notice in any state adopting it.

The opinion's reasoning is mechanical. The 2021 Act referred to California's then-existing standards. ACC II is a successor program with its own waiver and effective date. Virginia statute does not, in the AG's reading, automatically roll forward to ACC II. Without statutory direction, the Board's discretion governs, and the answer to "is the Board required to adopt ACC II" is no.

Citations

• 42 U.S.C. § 7543(a) (preemption of state emissions standards)
• 42 U.S.C. § 7543(b) (California waiver authority)
• 42 U.S.C. § 7507 (Section 177; state adoption of California standards)
• Va. Code Ann. § 10.1-1307.04 (Clean Cars Act of 2021 implementation)
• 2021 Va. Acts chs. 158, 159 (Clean Cars Act)
• Ford Motor Co. v. Env't Prot. Agency, 606 F.2d 1293 (D.C. Cir. 1979) (background on Clean Air Act preemption rationale)
• In re Volkswagen "Clean Diesel" Litigation, 959 F.3d 1201 (9th Cir. 2020) (Clean Air Act allocation of authority)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2024/24-017-Youngkin-&-McDougle-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA

Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
June 4, 2024 Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Jason S. Miyares
Attorney General

The Honorable Glenn Youngkin
Governor of Virginia

Patrick Henry Building, Third Floor
1111 East Broad Street

Richmond, Virginia 23219

The Honorable Ryan T. McDougle
Member, Senate of Virginia

Post Office Box 187
Mechanicsville, Virginia 23111

Dear Governor Youngkin and Senator McDougle:

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

Issue Presented

You inquire whether the State Air Pollution Control Board is required to adopt California’s
Advanced Clean Cars Program II—particularly those regulations establishing certain standards for low-
and zero- emission vehicles—for model years 2026 and beyond.

Response

It is my opinion that the Board is not required to adopt California’s Advanced Clean Cars Program
II, including those regulations establishing standards related to low- and zero- emission vehicles.

Background

As part of the federal Clean Air Act,’ the United States Congress has provided that federal law
should govern motor vehicle emissions standards.’ To address “concern[s] that auto manufacturers might
be subjected to multiple and inconsistent requirements” across jurisdictions,’ Congress enacted § 209 of the
Act, which specifically prohibits States from adopting or enforcing “any standard relating to the control of

1 42 U.S.C. §§ 7401-7671q.

2 See generally 42 U.S.C. §§ 7521 to 7590 (codifying §§ 201 to 250 of the Clean Air Act, governing “Emission
Standards for Moving Sources” as applied to “Motor Vehicle Emission and Fuel Standards’’).

3 Ford Motor Co. v. Env’t Prot. Agency, 606 F.2d 1293, 1295 (D.C. Cir. 1979).

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

Page 2

emissions from new motor vehicles or new motor vehicle engines” that are subject to the law.’ Instead, the
Environmental Protection Agency (“EPA”) is charged with establishing emissions standards that apply
nationwide.°

Section 209 nevertheless permits a State meeting certain conditions to petition the EPA for a waiver
from the federal standards when “the State determines that the State standards will be, in the aggregate, at
least as protective of public health and welfare as applicable Federal standards.”° Should the State receive
a waiver from the EPA, “compliance with [the] State standards shall be treated as compliance with
applicable Federal standards . . . .”’ California is the only state that is qualified to seek and receive a waiver
under § 209,8 but § 177 of the Act provides that other States may adopt and enforce their own standards,
provided “(1) such standards are identical to the California standards for which a waiver has been granted
for such model year, and (2) California and such State adopt such standards at least two years before
commencement of such model year . . . .””

In 2012, the California Air Resources Board (“CARB”) formulated a regulatory scheme—the
Advanced Clean Cars Program (“ACC I”)—that combined rules governing greenhouse gasses as well as
low- and zero-emission vehicles (“LEV” and “ZEV,” respectively) for model years 2015-2025.'° ACC I
was designed, in part, to reduce emissions generated by motor vehicles over time by reducing the sale of
new gas-powered vehicles relative to new electric car sales. In furtherance of this goal, ACC I established
a credit system whereby each vehicle manufacturer was required to maintain a California-specific credit
account: vehicle manufacturers earn credits for each zero-emission vehicle they sell and can trade or sell

442 U.S.C. § 7543(a).

542 U.S.C. § 7521. See, e.g., 40 C.FR. Parts 85, 86 & 600. See In re Volkswagen “Clean Diesel” Mktg., Sales
Pracs., & Prod. Liab. Litig., 959 F.3d 1201, 1219 (9th Cir. 2020) (explaining that the Clean Air Act “allocate[s]
authority between the federal government and state governments as follows: Section 209(a) gives the EPA exclusive
authority to establish standards for new vehicles, 42 U.S.C. § 7543(a), while § 209(d) preserves the authority of state
and local governments over post-sale vehicles, 42 U.S.C. § 7543(d)”).

6 42 U.S.C. § 7543(b)(1). A waiver is available “to any State which has adopted standards (other than crankcase
emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March
30, 1966,” when each State standard is at least as stringent as the comparable applicable Federal standard, and the
State needs the standards to meet compelling and extraordinary conditions. See 42 U.S.C. § 7543(b).

742 U.S.C. § 7543(b)(3).

8 See Ford Motor Co., 606 F.2d at 1296 (explaining that because “California was the only state which had adopted
standards other than crankcase emission standards prior to March 30, 1966, it was the only one eligible for the waiver
of federal preemption authorized by this section”).

° 42 U.S.C. § 7507. This authority is limited to those States that are subject to other regulatory requirements due
to the State’s nonattainment of national ambient air quality standards, see id.; Virginia is such a State. See ENV’T PROT.
AGENCY, Nonattainment and Maintenance Area Dashboard, \ttps://awsedap.epa.gov/public/ex tensions’ specs-area-
dashboard/index.htm! (last visited June 4, 2024). A “model year” is “the manufacturer’s annual production period . . .
which includes January 1 of such calendar year, provided, that if the manufacturer has no annual production period,
the term ‘model year’ shall mean the calendar year.” 40 C.F.R. § 85.2302; see also 40 C.F.R. §§ 85.2303 (setting out
the duration of a “model year’), 85.2304 (defining “annual production period”).

10 See CALIFORNIA AIR RESOURCES BOARD, ADVANCED CLEAN CARS PROGRAM, hitips://ww2.arb.ca.gov our-

standards under its waiver allowance, see DAVID R. WOOLEY & ELIZABETH M. Morss, CLEAN AIR ACT HANDBOOK
§ 5:22 “Preemption of state mobile source and fuel regulations—Low emission and zero emission vehicle
requirements; national low emission vehicle program” (Sept. 2023).

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

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these credits to other manufacturers or bank credits for future use.'' As set forth in § 1962.2 of Title 13 of
California’s Code of Regulations, ACC I required that, commencing with model year 2018, each
manufacturer obtain ZEV credits equal to at least 4.5% of all sales of new vehicles in California by such
manufacturer. ACC I further directed that this percentage would increase by 2.5% each model year until,
finally, in model year 2025 and subsequent years, ZEV credits equaling 22.0% of new vehicle sales in
California would be required.'2 The EPA approved CARB’s request for a § 209 waiver in 2013;'° upon
approval of the waiver, other States gained authority to implement California’s ACC I program.'*

In 2022, CARB determined that it wanted to pursue stricter emissions standards. Designed for
model years 2026-2035, Advanced Clean Cars Program II (“ACC II”) was created and set forth new
regulations to “rapidly scale down emissions of light-duty passenger cars, pickup trucks and SUVs and
require an increased number of zero-emission vehicles to meet air quality and climate change emissions
goals.”!5 While ACC I required ZEV credits totaling 22.0% of new vehicle sales in 2024 and subsequent
model years, ACC II requires a significantly higher percentage of ZEV credits over time: per CARB, under
the ACC II regulations, “by 2035 all new passenger cars, trucks and SUVs sold in California will be zero
emissions.”!° The effect of the new regulations is a ban of all sales of non-electric vehicles by 2035 and for
subsequent years. ACC II primarily implements new regulations; the addition of §§ 1961.4 and 1962.4 to
Title 13, for example, specifically established the stricter LEV and ZEV standards.'’ ACC II also amended

| CaL. CODEREGS. tit. 13, § 1962.2. ACC I also contained provisions to promote the sale of low-emission vehicles.
Id. at § 1961.2. Credit calculations are based on a formula whereby not all vehicles receive a flat 1 credit per sale; the
ZEV credit percentage therefore does not directly reflect the EV sales percentage. Regulations governing the creation
and use of ZEV credits are set forth in § 1962.2(c), (d), and (g) of Title 13 of California’s Code of Regulations.

12 CAL. CODE REGS. tit. 13, § 1962.2. The Circuit Courts of Appeals for the First and Second Circuits have deemed
such sales requirements to be emissions “standards” under the Clean Air Act. Am. Auto. Mfrs. Ass’n v. Cahill, 152
F.3d 196, 200 (2d Cir. 1998) (“[A] ZEV sales requirement must be considered a standard ‘relating to the control of
emissions.’”); accord Ass’n of Int’! Auto. Mfrs., Inc. v. Comm’r, Mass. Dep’t of Env’t Prot., 208 F.3d 1, 7 (Ist Cir.
2000) (“[Massachusetts] ZEV mandates are standards as that term is used in §§ 209 and 177 of the CAA.”).

13 California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting a Waiver of Clean Air
Act Preemption for California’s Advanced Clean Car Program,78 Fed. Reg. 2112 (Jan. 9, 2013).

'4 See 42 U.S.C. § 7507.

15 CALIFORNIA AIR RESOURCES BOARD, ADVANCED CLEAN CARS PROGRAM, )ittps://ww2.arb.ca.gov/our-
work/programs/advanced-clean-cars-program/about (last visited June 4, 2024).

'6 Tq. (further stating that the ACC II regulations “take the state’s already growing zero-emission vehicle market
and robust motor vehicle emission control rules and augments them to meet more aggressive tailpipe emissions
standards and ramp up to 100% zero-emission vehicles”).

'7 See STATE OF CALIFORNIA AIR RESOURCES BOARD, Advanced Clean Cars II Regulations, Resolution 22-12 at

17, 18 (Aug. 2022) (adopting, inter alia, §§ 1961.4 and 1962.4 as “new sections”), available at
https://ww2.arb.ca.gov/sites/default/files/barcu/board/res/2022/res22-12.pdf (last visited June 4, 2024).

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

Page 4

parts of ACC I to impose an express sunset on ACC I’s LEV and ZEV standards effective at the end of
2024.'§ CARB’s waiver request for ACC II is pending before the EPA.'®

In contrast to CARB, the EPA has not promulgated standards that include restrictions on sales of
gas-powered vehicles. In March 2024, however, the EPA announced the adoption of new federal emissions
standards for model years 2027 and beyond.”’ These standards also are designed to significantly increase
the nationwide move toward electric vehicles, but unlike ACC II, the federal regulations will not phase out
the sale of gas-powered vehicles entirely. With the revised federal standards, “the EPA estimates that by
2032 .. ., [these] rules could result in electrification of 67% of new sedans, crossovers, SUVs, and light
trucks.”?!

With this background, I turn to your question.
Applicable Law and Discussion

In 2021, before CARB created ACC II and set ACC I to expire December 31, 2024, the General
Assembly amended Virginia law with respect to the adoption of motor vehicle emissions standards. Per the
amendments, the legislature specifically provided that the State Air Pollution Control Board (“Board”)
“may adopt by regulation emissions standards controlling the release into the atmosphere of air pollutants
from motor vehicles, only as provided in § 10.1-1307.05... .”? Section 10.1-1307.05, in turn, also was
added to provide that “[t]he 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[,]”” i.e., the California standards.

'8 See id. at 18 (noting adoption of amendments to §§ 1961.2 and 1962.2). The sunset amendments applied to
standards for passenger cars and light-duty trucks. See also Final Regulation Order, Amendments to Sections 1900,
1961.2, 1961.3, 1965, 1976, 1978, 2037, 2038, 2112, 2139, 2140, 2147, 2317, and 2903, Title 13, California Code of
Regulations, at p.4; https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/accii 2acciifro lev_regs etal.pdf;
Final Regulation Rule, Amendments to Section 1962.2, Title 13, California Code of Regulations,
https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/accii/2acciitro1962.2.pdf.

19 See California State Motor Vehicle Pollution Control Standards; Advanced Clean Cars II Regulations; Request
for Waiver of Preemption; Opportunity for Public Hearing and Public Comment, 88 Fed. Reg. 88908 (Dec. 26, 2023).

20 See Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty
Vehicles, 89 Fed. Reg. 27842 (Apr. 18, 2024). The final rule is set to become effective on June 17, 2024, id., but it is
the subject of several legal challenges. On behalf of the Commonwealth, my Office has joined 25 other States in a
lawsuit that contends the EPA exceeded its power when it adopted the rule. See Petition for Review, Kentucky v. EPA,
No. 24-1087 (D.C. Cir. Apr. 18, 2024).

21 See The White House, F4CT SHEET: Biden-Harris Administration Proposes New Standards to Protect Public
Health that Will Save Consumers Money, and Increase Energy Security (Apr. 12, 2023), available at

https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/12/fact-sheet-biden-harris-administration-

proposes-new-standards-to-protect-public-health-that-will-save-consumers-money-and-increase-energy -security/,
See also 88 Fed Reg. 29184, 29189.
22 VA. CODE ANN. § 10.1-1307(B) (Supp. 2023). See also 2021 Va. Acts ch. 263 (Spec. Sess. I).

23 Section 10.1-1307.05(B) (Supp. 2023) (citing 42 U.S.C. § 7507). Per the statute, ““LEV’ means low-emission
vehicle” and “‘ZEV’ means zero-emission vehicle.” Section 10.1-1307.04(A). See also 2021 Va. Acts ch. 263 (Spec.
Sess. I). When passed by the General Assembly, the provisions of § 10.1-1307.05 originally were to be codified as
§ 10.1-1307.04, but additional legislation adopted during the same session resulted in its current codification as
§ 10.1-1307.05. See 2021 Va. Acts ch. 263 (Spec. Sess. I); 2021 Va. Acts ch. 98 (Spec. Sess. I) (enacting the statute
ultimately codified as § 10.1-1307.04).

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

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The statute further provides that

The Board shall promulgate final regulations for an Advanced Clean Cars Program that
includes (i) an LEV program for criteria pollutants and greenhouse gas emissions and (ii)
a ZEV program only for motor vehicles with a gross vehicle weight of 14,000 pounds or
less. 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.!**)

Finally, “[t]he Board shall periodically amend any regulations adopted pursuant to this section to ensure
continued consistency of such standards with the Clean Air Act.”

Pursuant to this legislation, the Board promulgated final motor vehicle emissions regulations in
December 2021.76 The regulations included both LEV and ZEV standards that mirrored those established
by ACC I and set up a LEV and ZEV credit program that copied that created under ACC I. Throughout the
regulations are numerous references to specific sections of the California Code of Regulations.”’ For
instance, Board regulations relating to the ZEV credit system direct that manufacturers’ annual reports be
made “according to 13 CCR § 1962.2.”** There is no reference to §§ 1961.4 and 1962.4, the relevant ACC
II regulations related to LEV and ZEV standards.

The California LEV and ZEV standards incorporated by the Board expire by operation of law at
the end of 2024.2? Accordingly, the Board’s current regulations do not operate to incorporate the standards
California promulgated as part of ACC II; ACC I] is primarily a new set of regulations, distinct from ACC
I and found in different sections of the California Code of Regulations.*° The Board has not incorporated
ACC II’s ZEV regulations or otherwise adopted the standards established under ACC II.?!

4 Section 10.1-1307.05(B).

5 Td.

269 VA. ADMIN. CODE §§ 5-95-10 to 5-95-50.

27 See, e.g., 9 VA. ADMIN. CODE §§ 5-95-20; 5-95-30; 5-95-40.

28 Id. at § 5-95-40(C)(2).

29 See CAL. CODE REGS. tit. 13, §§ 1961.2 & 1962.2 (both now applying only “through model year 2025”).

30 Compare CAL. CODE REGS. tit. 13, §§ 1961.2. & 1962.2 (ACC I), with CAL. CODE REGS. tit. 13, §§ 1961.4 &
1962.4 (ACC II). See Minnesota Auto. Dealers Ass’n v. Minnesota Pollution Control Agency, 986 N.W.2d 225 (Minn.
Ct. App. 2023) (recognizing distinction between amendments to existing regulations and adoption of new parts of
Title 13).

3! | note that the practical effect of this for Virginia car manufacturers and buyers is as follows:

1) Model Year 2025 (corresponding to calendar year 2024): Virginia follows ACC I for calendar year 2024 so
that manufacturers must obtain ZEV credits equal to 22.0% of new motor vehicle sales in Virginia during
2024. Because ACC I sunsets at the end of calendar year 2024, ACC I standards will cease to apply in
Virginia, in conformity with the Clean Air Act. See Cahill, 152 F.3d at 201 (“[S]tates cannot opt-in to a
California standard that no longer exists.”); accord Ass'n of Int’l Auto. Mfrs., Inc., 208 F.3d at 8.

2) Model Year 2026 (calendar year 2025): Under § 177 of the Clean Air Act, a State choosing to adopt California
standards for a particular model year can do so only upon certain conditions: 1) they are the same as those
for which California has obtained a waiver and 2) they are adopted “at least two years before commencement
of such model year.” Although ACC II applies in California beginning with Model Year 2026, subject to the
EPA granting the ACC II waiver, Virginia cannot implement any ACC II standards for any model year that
commences less than two years after the date it adopts such standards. Therefore, in 2025, car manufacturers
will be free to sell new gas-powered vehicles in Virginia without restriction.

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

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You ask whether the Board is required to adopt regulations implementing California’s new LEV
and ZEV standards, adopted as part of ACC II.

The powers and duties of Virginia’s state agencies, including the Board, are determined by
examining the statutes constituting a particular agency’s enabling legislation.” Indeed, agency “regulations
must be consistent with their governing statutes.”? The governing statutes that comprise an agency’s
enabling legislation are subject to the same principles of statutory interpretation as other statutes.**

The “primary objective” in interpreting a statute is “‘to ascertain and give effect to legislative
intent,’ as expressed by the language used in the statute[,]”° and courts are “bound by the plain meaning of
that language.”°° When “affording statutory language its plain and ordinary meaning, [courts] remain
cognizant of context[,]’’ and “adopt that sense of the words which harmonizes best with the context[.]’>
Courts therefore do not “interpret the relevant words [] in a vacuum, but with reference to the
statutory context, ‘structure, history, and purpose.’”° Accordingly, statutes are considered in their
entirety.° Moreover, the General Assembly is presumed to “cho[o]se its words with care when enacting a
statute[,]’! so that when it “employs a specific word in one section of a statute, and chooses a different
term in another section of the statute, we must presume the difference in language was intentional.””

3) Model Year 2027 (calendar year 2026): Should the EPA’s newly adopted federal regulation overcome their
pending legal challenges and become effective, the likely result is a gradual increase in market penetration
of electric vehicles but not a total ban of new gas-powered vehicles.

4) Model Year 2028 and beyond (beginning calendar year 2027): Assuming the EPA grants CARB’s waiver
request for ACC II, Virginia could follow ACC II’s standards if the Board chooses to promulgate regulations
to do so two years prior to the commencement of the model year, e.g., by December 31, 2024 for Model Year
2027.

32 See VA. CONST. art. III, § 1 (providing that administrative agencies may have “such authority and duties as the
General Assembly may prescribe”). “[T]he agencies established by the General Assembly are creatures of statute and
‘derive[] [their] power only from [their] authorizing legislation.’” 2022 Op. Va. Att’y Gen. 95, 96 (alterations in
original) (quoting Carpenter v. Virginia Real Est. Bd., 20 Va. App. 100, 106 (1995)). In determining the extent of an
agency’s regulatory authority, courts take into “account the text as well as the context of the underlying statute,”
whereby it is viewed as a “symmetrical and coherent regulatory scheme.” 2022 Op. Va. Att’y Gen. at 96 (quoting
Kavanaugh ex rel. Kavanaugh v. Virginia Birth-Related Neurological Inj. Comp. Program, 60 Va. App. 440, 447
(2012)).

33 Chesapeake Hosp. Auth. v. State Health Comm’r, 301 Va. 82, 93 (2022).

34 See, e.g., 2022 Op. Va. Att’y Gen. at 96.

35 Berry v. Bd. of Supervisors, 302 Va. 114, 127 (2023) (quoting Cuccinelli v. Rector & Visitors of the Univ. of
Va., 283 Va. 420, 425 (2012)).

36 Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007).

37 Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 206 (2023).

38 JV. v. Stafford Cnty. Sch. Bd., 67 Va. App. 21, 35 (2016) (quoting Johnson v. Commonwealth, 53 Va. App. 608,
611 (2009)).

39 2022 Op. Va. Att’y Gen. 105, 108 n.4 (quoting Abramski v. United States, 573 U.S. 169, 179 (2014)).

40 Dep’t of Med. Assistance Servs. v. Beverly Healthcare of Fredericksburg, 268 Va. 278, 285 (2004) (“[A] statute
should be read and considered as a whole, and the language of a statute should be examined in its entirety to determine
the intent of the General Assembly from the words contained in the statute.”).

41 Chesapeake Hosp. Auth., 301 Va. at 95.
42 Jordan v. Commonwealth, 295 Va. 70, 75 (2018).

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

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Accordingly, when the legislature “opts to invoke two different terms within the same act, ‘those terms are
presumed to have distinct and different meanings.’”**

The above 2021 General Assembly enactments govern your inquiry, but these Virginia statutes must
be read in light of applicable federal law. The Clean Air Act makes clear that no State may adopt or enforce
“any standard relating to the control of [new motor vehicle] emissions[.]”“ This prohibition
notwithstanding, a State may adopt standards “identical to the California standards for which a waiver has
been granted” for model years two years in the future.* Accordingly, the only discretion regarding such
emissions standards afforded States under federal law is choosing between 1) adopting no standards and
adhering to the default federal standards or 2) adopting standards identical to EPA-approved California
standards.

Sections 10.1-1307 and 10.1-1308 of the Code of Virginia, among other provisions, set forth
numerous powers and duties of the Board; in them, the General Assembly has provided both that the Board
“may” take certain actions and that it “shall” take others.“° As amended in 2021, § 10.1-1307(B) currently
provides that the Board “may adopt by regulation [motor vehicle] emissions standards . . . as provided in
§ 10.1-1307.05....4” Section 10.1-1307.05 expressly provides that “[t]he Board may adopt by regulation
_.. LEV and ZEV standards pursuant to § 177 of the federal Clean Air Act[.]’** These new provisions
delegate Section 177 discretion to the Board so that it “may” adopt emissions standards; neither directs that
the Board “must” or “shall” adopt such standards generally or any particular set of standards.

th

in a law evinces discretionary intent.” Indeed,
99950

The use of the word “may”—as opposed to “shall’
“the Supreme Court of Virginia has consistently treated the word ‘may’ as ‘prima facie permissive[.]
Accordingly, absent a manifest legislative intent to the contrary, courts “will apply the ordinary meaning of
the word ‘may’ in construing a statute[,]’”! and the word “may” ordinarily signifies “permission, importing
discretion.’” I find no language in § 10.1-1307 or in § 10.1-1307.05 suggesting that the word “may” is
used in a mandatory, rather than its ordinary sense.

4 Cuccinelli v. Rector & Bd. of Visitors of the Univ. of Va., 283 Va. 420, 429 (2012) (quoting Indus. Dev. Auth.
of Roanoke v. Bd. of Supervisors, 263 Va. 349, 353 (2002)).

44 42 U.S.C. § 7543(a) (emphasis added).

45 42 U.S.C. § 7507.

46 Compare VA. CODE ANN. § 10.1-1307(H) (directing that the Board “shall submit an annual report”), with § 10.1-
1308(E) (Supp. 2023) (providing that the Board “may establish . . . an auction program to sell allowances” in regulating
carbon dioxide emissions from electricity generating units).

47 Section 10.1-1307(B) (emphasis added). See also 2021 Va. Acts ch. 263 (Spec. Sess. I).

48 Section 10.1-1307.05(B) (emphasis added).

49 See, e.g., AME Fin. Corp. v. Kiritsis, 281 Va. 384, 392 (2011).

50 Fairfax v. CBS Corp., 2 F.4th 286, 296 (4th Cir. 2021) (quoting Harper v. Va. Dep’t of Tax’n, 250 Va. 184, 462
(1995)).

5! Sauder v. Ferguson, 289 Va. 449, 457 (2015). See also, e.g., 1998 Op. Va. Att’y Gen. 56, 57 (“The term ‘may,’
as used in a statute, should be given its ordinary meaning intended by the General Assembly—‘permission, importing
discretion.” (citing Masters v. Hart, 189 Va. 969, 979 (1949))); 2015 Op. Va. Att’y Gen. 105, 106 (“[T]he ordinary
meaning of ‘may’ denotes permission, not compulsion.”).

52 Bd. of Supervisors v. State Corp. Comm’n, 292 Va. 444, 454 (2016). See also Spindel v. Jamison, 199 Va. 954,

957 (1958) (“The word ‘may’ should not be construed to mean ‘must’ or ‘shall,’ unless the clear intention of the
legislature demands it.”); Price v. Commonwealth, 209 Va. 383, 387 (1968) (“The word may is permissive.”).

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

Page 8

To the contrary, although “may” can be construed as mandatory when warranted by its specific
context,>3 such a reading is disfavored when, as here, both words are used in a statute and “the statute itself
thus distinguishes between ‘shall’ and ‘may.’”** In enacting § 10.1-1307.05, the legislature employed the
word “shall” three times within the same paragraph, in the sentences immediately following the language
providing that the Board “may” adopt by regulation California emissions standards for any particular model
year.» The associated enactment clauses also use “shall” multiple times.°° Because “[t]he General Assembly
is well aware of the difference between the words ‘may’ and ‘shall,’”°’ I conclude that “may,” as used in
§ 10.1-1307.05(B) to enable the Board to adopt LEV and ZEV standards identical to California’s under
§ 177 of the Clean Air Act, is discretionary and not mandatory.

Although the statute does provide that the Board “shall” promulgate final regulations for certain
LEV and ZEV programs and “shall” ordinarily “is the language of a command,”° the word “shall” is not
to be interpreted in isolation.? Here, the mandatory language follows the permissive grant of authority to
the Board to adopt LEV and ZEV standards. By employing “may” in § 10.1-1307.05(B) before listing the
requirements that follow, the General Assembly maintained the general § 10.1-1307(B) grant of power and
added conditionally mandatory provisions. The contemplated “final regulations” are the means of
implementing California standards should the Board choose to adopt them. The mandatory language that
follows the enabling provision therefore is predicated on the Board deciding to adopt EPA-approved
California standards in the first instance. Such an exercise of discretion is thus a condition precedent for
the promulgation of the specific regulations contemplated in the remainder of the statute. Consequently,
properly read in context of the statute as a whole, § 10.1-1307.05(B) imposes no independent duty on the
Board to adopt any California standards or to promulgate any LEV or ZEV program or attendant final
regulations and is thus conditionally mandatory at most.*

53 TM Delmarva Power v. NCP of Va., 263 Va. 116, 121 (2002) (“[W]hile the word . . . ‘may’ is primarily permissive
in effect,” it may be construed “as permissive or mandatory in accordance with the subject matter and context.”).

54 Wal-Mart Stores E., LP v. State Corp. Comm’n, 299 Va. 57, 71 (2020).

55 See also Andrews v. Shepherd, 201 Va. 412, 414 (1959) (strictly construing the word “may” as permissive and
the word “shall” as mandatory when the two words were used in close proximity to each other).

56 See 2021 Va. Acts ch. 263 (Spec. Sess. 1).

57 Sauder, 289 Va. at 458.

58 Last v. Virginia State Bd. of Med., 14 Va. App. 906, 911 (1992) (quoting Andrews, 201 Va. at 414.).

59 Earley v. Landsidle, 257 Va. 365, 369 (1999) (acknowledging that statutes are not to be interpreted “by isolating
particular words or phrases”); Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 36 (1988) (presuming that specific terms
are “not employed by the legislature in a vacuum” but are “used in the context of the functional purpose of the entire
[statute]”). Accordingly, in context, “shall” will “not always impose a mandatory condition.” Cirrito v. Cirrito, 44 Va.
App. 287, 309 (2004) (citing Cook v. Radford Cmty. Hosp., Inc., 260 Va. 443, 447 (2000)).

60 See Supervisors of Botetourt Cnty. v. Cahoon, 121 Va. 768, 780-82 (1917) (holding that the mandatory provisions
of an act related to bonds were triggered only upon the county’s exercise of discretion to issue the bonds under the
preceding enabling provision).

61 Iq.; cf. Berry, 302 Va. at 137 (explaining that a statute providing that a locality “may” adopt a certain ordinance
that “shall” be limited to specified restrictions “only grants localities discretion to adopt an ordinance, it does not
require that a locality adopt any such ordinance at all”); 2002 Op. Va. Att’y Gen. 83, 84-85 (concluding that a statute
simultaneously providing that a county “may” collect certain processing fees and that the fee “shall be used” in a
specified manner implied that the collection was discretionary but, if fees were collected, then the specified use was
mandatory); accord 2015 Op. Va. Att’y Gen. at 109.

Honorable Glenn Youngkin
Honorable Ryan T. McDougle
June 4, 2024

Page 9

The additional enactment clauses associated with the General Assembly’s enactment of § 10.1-
1307.05 are consistent with this reading.” Enactment clause 5, for example, provides the following:

As part of any update to the required regulations to ensure compliance of the ZEV program
with the federal Clean Air Act (42 U.S.C. § 7401 et. seq.), the Board shall adjust, if
necessary, restrictions on the use of the proportional credits remaining in manufacturers’
Virginia accounts in order to ensure that the percentage of ZEVs required to be delivered
for sale under Virginia’s ZEV program is approximately equivalent to, but does not exceed,
the percentage required under California’s ZEV program, taking into account only existing
ZEV credit banks, any changes in restrictions on their use, and the effects of new regulatory
requirements on the amount and timing of ZEVs required to be delivered for sale.!'**!

Here, the reference to “the required regulations” simply refers back to the final regulations the Board must
adopt in the event it first elects to adopt standards “pursuant to § 177 of the federal Clean Air Act.”
Adjustments under this provision thus will be warranted only to the extent the Board makes that election.

In sum, the General Assembly knows how to express its intention and easily could have directed
the Board to adopt standards identical to California’s in accordance with § 177 of the Clean Air Act.
Instead, pursuant to the plain language of § 10.1-1307.05, the Board “may” adopt ACC II’s LEV and ZEV
standards, but because “‘[m]ay’ presupposes that the [agency] also ‘may not[,]’” the Board is not required
to do so.® Although the Board chose to adopt ACC I’s model year standards, which are now set to expire
at the end of 2024, it has not chosen to adopt ACC II’s. Should the Board, in its discretion, choose to adopt
ACC II’s LEV and ZEV model year standards, then the Board “shall” comply with the otherwise
conditionally mandatory provisions of the statute.

Conclusion

Accordingly, it is my opinion that the Board is not required to adopt the LEV and ZEV standards
contained in California’s Advanced Clean Cars Program II.

With kindest regards, I am,

Very truly yours,

2

Jason S. Miyares
Attorney General

62 Although uncodified, an enactment clause “is part of the body of the act” and courts “may rely on the [enactment]
clause to determine the precise content of legislation.” Kiser v. A.W. Chesterton Co., 285 Va. 12, 27 (2013) (alteration
in original) (quoting Gilmore v. Landsidle, 252 Va. 388, 394 (1996)).

63 2021 Va. Acts ch. 263 (Spec. Sess. I) (emphasis added).

64 This conclusion applies equally to the amendments required under the last sentence of § 10.1-1307.05(B).

65 See, e.g., 1999 Op. Va. Att’y Gen. 10, 11 (“When the General Assembly intends a statute to impose requirements,
it knows how to express its intention.”); 2003 Op. Va. Att’y Gen. 147, 149 (“When the General Assembly intends to
enact a mandatory requirement, it, of course, knows how to express its intention.”).

66 Wal-Mart Stores E., LP, 299 Va. at 70.