Background
The Virginia Board of Housing and Community Development adopted amendments to the Uniform Statewide Building Code after its 2021 code-development cycle. The Sierra Club participated in that process and proposed adopting the 2021 International Energy Conservation Code standards in full, as well as updating wall-insulation and air-leakage standards. The Board rejected those proposals and ultimately adopted regulations that allegedly rolled certain energy-efficiency standards back to requirements associated with the 2006 code.
The Sierra Club and three individuals petitioned for judicial review, alleging that the Board acted arbitrarily and capriciously, lacked evidentiary support, and failed to comply with procedural requirements. The Richmond Circuit Court sustained the Board’s demurrer with prejudice, holding that the petitioners lacked statutory standing under the Virginia Administrative Process Act because they had not alleged a negative departure from their existing circumstances.
The Court’s Holding
The Court of Appeals held that the circuit court applied the wrong standard for standing under Code § 2.2-4026(A). A person challenging a regulation under the VAPA need only be “affected by” it, meaning that the regulation acts upon, materially influences, or alters that person’s interests. The statute does not impose the federal Administrative Procedure Act’s injury-in-fact and zone-of-interests tests, nor does it require the challenger to be “aggrieved,” the distinct standard applicable to challenges to agency case decisions.
The court emphasized that a purely ideological disagreement remains insufficient: a challenger must allege that the regulation affects a personal interest. It did not decide whether the Sierra Club petitioners actually met that standard. Instead, it reversed the dismissal and remanded for the circuit court to determine in the first instance whether the petitioners, individually or collectively, were “affected by” the regulation. The court also left unresolved whether a party satisfying the VAPA’s statutory standard must separately establish constitutional standing.
Key Takeaways
- Standing to challenge a Virginia regulation under the VAPA turns on whether the regulation affects a personal interest, not whether the challenger proves a negative change from existing circumstances.
- The VAPA establishes different standing thresholds for challenges to regulations and challenges to agency case decisions.
- The decision does not establish that the Sierra Club petitioners have standing or resolve their claims against the building-code amendments; those issues remain for proceedings on remand.
Why It Matters
The decision clarifies for the first time in a published Virginia appellate opinion the scope of the VAPA’s “affected by” standard for judicial review of regulations. It rejects importing the federal APA’s standing framework into materially different Virginia statutory language.
The ruling may broaden access to judicial review compared with the standard applied by the circuit court, while preserving a meaningful limit: organizations and individuals must connect the challenged regulation to a personal interest rather than rely on generalized policy objections.