Gov. Albert Bryan Jr., through the Department of Justice, has filed suit to stop implementation of recent legislation changing the makeup of the Water and Power Authority board.
The statute, proposed by Sen. Janelle Sarauw, aims to make the WAPA board more expert and independent of politics. At the same time, it reduces the governor’s powers over appointments to the board. The government is arguing that reduction infringes on the governor’s powers under V.I. law, the federal Revised Organic Act of 1954 and the U.S. Constitution.
The legislation: Bill 34-0026, later Act 8472, reduces the size of the WAPA board from the current nine members down to seven and reduces the number of members needed for a quorum from five to four. It also requires members to reside in the districts they represent and all non-government members to have formal education in any one of several fields, from energy production to information technology. Under the pre-existing law, the governor appointed three members of the board from among his cabinet. The new law removes two of those and specifically appoints the director of the Virgin Islands Energy Office as the sole cabinet-level member on the board.
The Legislature passed the measure in early May. Bryan vetoed it two weeks later, saying it is solely an attempt to remove the number of individuals directly appointed by the governor from amongst cabinet-level heads of departments and agencies, which puts it in violation of the Revised Organic Act.
“While this measure is motivated by great intentions to address the vexing problems of WAPA, it does nothing to improve the efficiency, reliability and affordability of the services provided by the Water and Power Authority,” Bryan wrote in his transmittal letter. “This does nothing to address the allegations of waste, fraud and abuse. It does nothing to address customer complaints. It is solely focused on limiting the governor’s input into the decision-making of WAPA.”
Senators unanimously overrode the veto in early August.
The Department of Justice issued a statement Thursday saying the government is suing to prevent its implementation. It says the legislation “is unconstitutional and unlawfully infringes upon the power and authority of the executive branch and chief executive, in violation of the separation of powers doctrine under the Revised Organic Act of 1954 and the Constitution of the United States.”
Attorney General Denise George said, “The court action specifically asks the V.I. Superior Court to enjoin the V.I. Water and Power Authority from implementing or operating under the new law and to declare that Act No. 8472 is unconstitutional and inorganic, therefore void as a matter of law.”
George also said only a court of law can render a final determination on the constitutionality of a statute.
The government’s complaint points to the powers of the governor established under the federal Revised Organic Act of 1954, quoting a passage saying the governor “shall have general supervision and control of all the departments, bureaus, agencies, and other instrumentalities of the executive branch of the government of the Virgin Islands.”
It also points to the original act of the Legislature creating the WAPA board in 1964. That statute gives the governor the power to appoint three members and to remove those three at will.
One legal question that is not addressed in the complaint or Department of Justice statement is, if the Legislature had the power to enact legislation setting the original size and the original ability of the governor to appoint three members, how that same authority does not allow the Legislature to amend its own statute.
Another bill enacted at the same time changes PSC control over WAPA and triggered warnings from the Fitch Ratings Agency that it might lead to WAPA defaulting on its debt. That bill is not affected by this lawsuit.