Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 26, 1995 TAG: 9503250006
SECTION: EDITORIAL PAGE: G-3 EDITION: METRO
SOURCE: KAY SLAUGHTER
DATELINE: LENGTH: Medium
In addition to working with local officials who have control over land use to stop the potential health hazard and protect the value of your property, it would be wise to review Virginia's environmental-permitting process. A notice in the newspaper might alert you to public hearings on the proposed facility, where you could voice your opposition. Or you might contact expert scientists from a local community college or university to comment.
But when all is said and done, and the state agency issues the permit, can you challenge that permit in court?
In Virginia, no. An individual does not have the right to confront government through the judicial system. This right to go to court to redress grievances is called "standing," and, in Virginia, only the applicant can challenge the issuance of the permit or its terms. The local government, citizens, watermen and others affected by the permit have no redress for their grievances.
For the past three years, a number of municipalities, businesses, conservation groups and legislators have been trying to revise the law. But powerful industry lobbyists have exercised more influence than the advocates for citizen standing, and the General Assembly has refused.
With nowhere to go in state government, several Virginia groups concerned with public health and the environment asked the U.S. Environmental Protection Agency whether the commonwealth's restrictive standing laws violated the federal Clean Water and Clean Air acts.
EPA sided with the citizens. Last fall, EPA disapproved Virginia's "Title V Operating Permit Program" relating to industrial and other sources of air pollution. Virginia operates the program under the Clean Air Act, which requires that standing be afforded to those persons who participate in a permit's public-comment process and who can demonstrate that they would be injured by the permit.
More recently, EPA has clarified its rules under the Clean Water Act, requiring states like Virginia that run a water-pollution discharge-permit program to afford citizen standing. Virginia is the only state that does not allow its citizens access to the courts.
EPA has told Virginia, in essence, to give citizens the right to go to court to redress their grievances, or the state will be penalized.
Under the Clean Air Act, EPA could issue all permits from its regional office in Philadelphia until Virginia complies with the act by granting citizens standing. Sanctions could include the withholding of federal highway money and restrictions requiring further reductions in the emission of pollutants.
Under the Clean Water Act, EPA could eliminate Virginia's program permanently, and issue permits and collect fees from Philadelphia. The state would thereby lose all jurisdiction over the permitting process. No one wants this. The reasonable response would be to change the law.
But the Allen administration, which has vowed to "return government to the people," has responded with two lawsuits against the EPA relating to its actions under the Clean Air Act. One case, filed in U.S. District Court, seeks to overturn aspects of the federal Clean Air Act on constitutional grounds, claiming primarily that a state has a right to be free from federal regulation. Until states can find a method of preventing pollutants from drifting beyond their borders, such an argument rings hollow.
Eleven organizations, ranging from the American Lung Association of Virginia to the Virginia Chapter of the Sierra Club, are opposing the commonwealth's other appeal of EPA's action, which is before the U.S. Court of Appeals for the Fourth Circuit. They are concerned about air quality, its impact on human health, and its effects on water quality and fisheries in streams, rivers and Chesapeake Bay.
Virginia is using our tax dollars to fight the EPA ruling, and to prevent citizens from having their day in court. How ironic that at a time when we are trying to return government to the people, the commonwealth would tell the people that they have no right to seek redress through the courts.
Virginians like residents of every other state in the nation should have the right to seek the protection of the courts when their health, their environment or their property is threatened by the actions of the state.
Kay Slaughter is a staff attorney with the Southern Environmental Law Center and vice mayor of Charlottesville.
- Virginia Forum
by CNB