THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, June 14, 1996 TAG: 9606140019
SECTION: FRONT PAGE: A18 EDITION: FINAL
TYPE: Opinion
SOURCE: By KAY SLAUGHTER
LENGTH: 67 lines
In 1991, a Virginia court refused to allow the southwest Virginia town of Fries to appeal an upstream sewage-treatment permit. The court denied the town ``standing'' to seek judicial review, meaning that the town did not have a sufficient interest in the action under Virginia law to mount a court challenge. Virginia courts also denied landowners in two other cases the right to appeal permits for two poultry plants' noxious fumes and water discharges.
Virginia thus became the only state in the country denying citizens the right to challenge pollution permits. However, a bill passed by the state legislature earlier this year will reinstate that right. Only one obstacle remains: In signing the bill, Gov. George Allen established the effective date of the new laws as occurring at some time in the future, after he had exhausted all legal appeals of states'-rights issue in the courts.
First, a little history. In 1992, in response to the three state appeals-court cases, the General Assembly created an advisory group of citizens, industry representatives and government officials to offer recommendations on standing. The group proposed modest changes, but the legislature rejected them. Meanwhile, then-Gov. Douglas Wilder supported a bill allowing appeals of air-pollution permits only. Environmental groups wanted their water-permit challenges to be allowed as well.
In 1994, the General Assembly passed a law allowing those with a ``substantial, immediate and pecuniary'' interest in the permit - essentially the permit holder - to challenge air permits. Environmental groups charged that this narrow definition was in violation of the Clean Air Act's requirements for public participation. They also filed a petition with the Environmental Protection Agency requesting that the federal government invalidate the state's water-discharge-permit program because citizens had been shut out of the public process required by the Clean Water Act.
When the EPA sided with the environmentalists and disapproved Virginia's air-permit program, the Allen administration filed a lawsuit challenging the Clean Air Act and the EPA's interpretation of the law. The administration argued the EPA had no right to penalize states for barring citizens from appealing pollution permits. To do so was an infringement of states' rights.
In late March of this year, the U.S. Court of Appeals in Richmond unanimously upheld the EPA's action. Virginians must have the right to appeal pollution permits, the court said, or Virginia cannot manage its own air-permit program. Just a few weeks prior to the court's decision, the General Assembly passed by a large margin a bill allowing those who can demonstrate a potential injury to challenge a permit if they had participated in the public process for setting the permit limits.
Since Governor Allen only agreed to sign the bill if it included a provision delaying implementation of the law, the law has not gone into effect. The governor has petitioned the Court of Appeals to reconsider its decision upholding citizen standing. The next step would be to appeal the decision to the U.S. Supreme Court.
Why is there any hesitation? Citizen access to judicial review is vital to the Clean Air Act and the Clean Water Act, which hold states and industry accountable for the pollution they generate. Standing to sue under these laws provides an opportunity for the public to help shape permit decisions that will affect air and water quality in their communities. Without such review, there is no check on state agencies - which are under intense pressure by industry to weaken regulations - and there is little incentive to consider public input.
For the sake of Virginians, Governor Allen should drop his appeal. Our rights as citizens to protect our air and water are more important than the ideology of states' rights. MEMO: Kay Slaughter is a staff attorney at the Southern Environmental
Law Center and is vice mayor of Charlottesville. by CNB