How Gov. Northam Wins the Game of Thrones

Virginia’s very own Battle of Winterfell is brewing before our very eyes.

Starring in the gruesome role of the undead wights? The climate-denying fringe of the General Assembly, who inserted a flimsy, pro-pollution gimmick in the budget. If allowed to stand, it would unconstitutionally unwrite Virginia’s longstanding air pollution law and derail Virginia's historic climate action.

Starring in the role of the living “good guys,” arraying themselves against the climate-denying undead?  Well, pretty much most everyone else in America. That is, all of us who value clean air, commonsense climate action, and a growing clean energy economy.

Lastly, what plays the modest, unexpected heroine role to save the day?

The governor's line-item veto pen. (Don't worry, we won't name the veto pen "Arya.") Executive veto authority over polluter special interests is clearly spelled out by our constitution and in our Virginia Supreme Court decisions, not to mention previous governors' valid uses of veto power. Together, those forces all grant Virginia Governor Northam a clear, unambiguous authority that he is free to wield against air polluters by Friday’s midnight deadline.

A Northam veto would be just in the nick of time: Trump's mindless assaults on the environment and commonsense climate action continue unabated, on behalf of the very same well-funded, big-polluters behind the climate deniers' Virginia budget gimmick. In the face of that dangerous assault on climate action and Americans' safety, and amid worsening climate indicators (complete with worsening ticks and Lyme disease here in Virginia), Virginia should be a light in the darkness: the Commonwealth's climate change action would make Virginia the first new state under Trump to reduce its power plant carbon pollution, and the first Southern state ever to do so. But that's only if Northam stops Virginia's zombie undead climate deniers dead in their tracks, by flourishing his constitutionally-vested veto pen on Friday.

Setting aside gratuitous Game of Thrones references for a moment, let’s take a deeper dive into the particulars of this momentous standoff in Virginia, identify exactly what’s at stake, and what to expect next. (Spoiler alert: history favors the good guys.)

The Zombie Undead’s Pro-pollution Budget Rider

Despite the wide popularity of tackling climate change and expanding clean energy, pro-polluter special interests slipped a provision into the budget that would prevent just that.

Item 4-5.11,” if Governor Northam stood aside and allowed it to stand, forbids the Department of Environmental Quality from implementing their recently-completed carbon pollution regulation. That commonsense, popular approach to reducing pollution (it's the same way we eliminated acid rain decades ago) was lawfully completed under the state’s longstanding air pollution statute. Virginia will reduce, by 30% over the next decade, the main driver of costly climate change—carbon pollution—that currently belches in unlimited amounts from Virginia’s gas and coal power plants. The rule will not only clean the air and lower power bills via efficiency gains, as has already been done across 9 other states for over a decade now. The clean air rule will also clear the way for Virginia to finally join the 21st century clean, renewable energy economy, and leave the soot-covered 19th and 20th centuries behind. That commonsense rule, completed just last month, was the lawful culmination of a diligent, multi-year process, including exhaustive analyses and tens of thousands of public comments. Indeed, Virginia's carbon pollution measure is exactly how democracy works: the legislature passes a law (in this case, Virginia’s Air Pollution Control Law), and agencies lawfully implement it to protect human health, with transparency and according to a statutory procedure that ensures robust public participation.

But cue the music, because here come the bad guys. “Item 4-5.11” in this year's pending budget unconstitutionally short circuits that democratic process and the state’s longstanding Air Pollution Control Law. How? A pro-polluter fringe element of the legislature is using the unrelated budget bill to blot out our longstanding air pollution statute, laws that were democratically put on the books decades ago to protect Virginians from pollution.The climate-deniers' budget gimmick does so by prohibiting a single dollar from being spent to enforce our laws regarding carbon pollution.

If that short-circuiting sounds wrong, it is.

And that's why Virginia has a little thing called the Constitution, to ensure a fringe element in the legislature, which is unable to pass actual legislation on its own, cannot upend the democratic process and erase longstanding law with flimsy, poorly-drafted budgetary gimmicks.

The Constitution Rides to the Rescue

While it’s true the legislature controls the purse strings, when it comes to the budget itself, the governor gets the last laugh.

Article V of Virginia's constitution gives the governor “line item” veto authority. That is, if there is a self-contained, discrete "item" in the budget that any governor disagrees with, she may strike it.

Subsequent Virginia Supreme Court decisions (a/k/a “case law”) have clarified our constitution’s relatively sparse language, to clarify exactly what qualifies as an “item” in the budget, and thus what may (or may not) be validly vetoed, according to its status as an actual “item.” The court’s landmark case (Commonwealth v. Dodson) describes a veto-able "item" as a free-standing piece of the budget bill, that can be cleanly lifted out of the underlying budget, without impacting any other part of the budget that is left behind.  In the court’s colorful language, there can be no “damage to the legislative tissue” when the vetoed item is removed. That is unquestionably the case for 2019’s “Item 4-5.11”: it is free-standing and completely detached from and unrelated to the rest of the budget bill, both physically within the budget and also contextually, with no words or phrases that link it to other parts of the budget in any way.

A subsequent case, Brault v. Holleman, significantly narrowed the scope of what constitutes a veto-able “item” (as such, it is this court case on which any pro-polluter climate deniers would likely try to hang their hat, if they felt bold enough to attempt a challenge of the governor’s valid veto of “Item 4-5.11”). The Brault court disallows a veto of any part of the budget that is explicitly, or implicitly, “conditioned” upon any other part of the budget. That is, building on the Dodson court’s “legislative tissue” metaphor, an item with conditions attached to it may not be vetoed, because that "conditional" language referencing the larger budget serves to "tie up" that piece of the budget to some other part of the budget. 

Budget-meddlers typically accomplish this “tying up” of items to the rest of the budget by simply slapping on the following phrase at the start of a budget provision: “As a condition on all appropriations in this act...” Those magic “Brault-words” alone have rendered items immune to a governor’s veto, when the governor does not also veto the rest of the budget upon which that item is conditioned. Indeed, most of the eight set-aside (i.e. not recorded) vetoes of the past decade contained those very same conditional words (and the other three set-aside vetoes had some other obvious link to another specific appropriation in the larger budget). Most famous was the “Stanley Amendment,” which rendered itself immune to Gov. McAuliffe’s veto pen by cloaking itself in the magic prefatory “As a condition on all appropriations…” words. The Brault decision makes for a blunt instrument for legislators to use to thwart the veto pen.

But (somewhat mysteriously) none of those magic "conditional" words, or anything resembling them, which would otherwise tie “Item 4-5.11” to the rest of the budget and thus render it immune to Northam's veto under Brault, none of them appear in "Item 4-5.11." As such, he may freely veto. (And if he doesn't, he'd be losing a game of chicken the other side clearly isn't even playing in the first place.)

And that overview is why the constitution and case law clearly afford Governor Northam the last laugh this Friday, should he choose to seize it on behalf of the Commonwealth and its constitution.

We’ve Seen this Episode Before

In the past decade, Governors have sent down over 40 valid line-item vetoes, and one of them in particular stands out as uncannily similar to the present situation.

2012’s budget also had an “Item 4-5.11.” Like the current “Item 4-5.11,” it also unconstitutionally attempted to undo standing law, also via a flimsy, veto-able spending prohibition. Governor McDonnell rightly, validly vetoed it, foreshadowing Governor Northam’s own authority over the present-day Item 4-5.11. As such, the Clerk would have to bend into arbitrary, pretzel-worthy contortions if he tried to treat Gov. Northam differently than he did Gov. McDonnell.

What Happens Next?

Virginia’s 2019 climate and clean energy Battle of Winterfell will conclude this Friday (5/3) at midnight. That is the deadline by which Gov. Northam must roundly strike down the climate-denying fringe’s unconstitutional attempt to erase Virginia’s air pollution law.

The Governor does so by sending a “veto message” to the Clerk of the House of Delegates. A veto message succinctly lays out his rationale for why he is vetoing "Item 4-5.11." Northam might also spell out how his veto, like Gov. McDonnell’s veto of the spending prohibition in 2012’s Item 4-5.11, is constitutionally valid and thus must be duly recognized by the Clerk, under both the constitution and according to the Clerk's own previously-recognized vetos.

Once the Governor does so, the validly completed carbon rule will continue to go into effect, and Virginians can start breathing easier.

Recall that the Clerk of the House (in Game of Thrones parlance, think of him as a non-politicized, neutral “maester”) has sometimes “set aside” invalidly-rendered vetoes. (Indeed, he has done so eight times in the past decade.) In every one of those cases, each attempted veto could not withstand the Brault "conditionality" test discussed above. That is, the items vetoed had conditional language that tied them to specific other parts of the budget. In those cases, the Clerk rightly acted as a neutral umpire, applying the unambiguous Brault "conditionality" test. Like McDonnell’s 2012 veto, that disqualifying conditionality does not exist in “Item 4-5.11,” so the Clerk may not validly set aside a veto of Item 4-5.11 (just as the Clerk did not set aside McDonnell’s 2012 veto of the same item).

But to return one last time to our theme, unexpected plot twists and unseemly alliances abound in the fictional Game of Thrones: it would be a similarly dark day for Virginia, if the Clerk were to arbitrarily treat this governor differently from McDonnell and set the veto aside. Indeed, if that unlikely event occurs, it's safe to assume that the once-neutral Clerk has been transformed by climate deniers into another dreaded wight!

But even in the unlikely event the Clerk allowed himself to be weaponized by gross politics, the good guys will still win in the end. Why? Because of Virginia’s ultimate greatsword: our constitution. But that’s another story, for another day. 

For now, grab your popcorn, and settle back for the Friday night show!