ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Wednesday, March 27, 1996 TAG: 9603270071
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: CATHRYN McCUE STAFF WRITER
Virginians have the right to sue the state over air pollution permits, a federal appeals court ruled Tuesday in throwing out Gov. George Allen's lawsuit against the federal government.
A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously upheld an Environmental Protection Agency finding that Virginia's proposed air-permitting program violates federal anti-pollution laws. The court also said the EPA has the authority to take over the program and withhold highway funds if the state does not comply with the federal mandates.
"We're disappointed that the court would consider a cutoff of highway funds," said Mark Miner, a spokesman for the attorney general's office. "The federal government is saying, 'You do it our way or else.' The court said today that was constitutional, and we disagree."
Miner said the attorney general's office will study the opinion further and consider its options, including whether to petition the U.S. Supreme Court to review the case.
Under Virginia law, residents must show an "immediate, substantial and pecuniary" harm from the issuance of air pollution permits before they can challenge those permits in court. The EPA last year said that was too strict under the Clean Air Act and threatened to withhold up to $1 billion in highway funds. The Allen administration used the issue in a constitutional challenge to the federal government's authority over states.
It's uncertain how Tuesday's ruling against Allen will affect his action on a bill that would broaden ``citizen standing'' on air and water pollution permits, said spokeswoman Julie Overy. The standing bill, passed with bipartisan support in the General Assembly this year, has not been reviewed by the governor's office, Overy said.
The appeals court ruling does not affect water pollution permits. Still, it was "another piece of the puzzle falling into place," said Kay Slaughter, staff attorney for the Southern Environmental Law Center in Charlottesville, who has worked on the standing issue for more than five years.
"It's a very strong, straightforward opinion, and I hope it will be persuasive to the governor to go ahead and sign the legislation into law. This really vindicates the rights of citizens."
The standing law for water pollution permits is even stricter than for air permits. Only the person or industry applying for a water pollution permit can challenge the state in court. Environmentalists have said Virginia has the strictest standing laws in the country.
The Allen administration and some business interests say broadening the law could create a flood of frivolous lawsuits and slow economic growth by delaying the permitting process. The administration also says that the public comment and public hearing process already in place provides ample opportunity for people to voice their concerns.
The appeals court addressed that in its opinion: "The comment of an ordinary citizen carries more weight if officials know that the citizen has the power to seek judicial review of any administrative action harming him."
Slaughter said it was unlikely that the courts would be clogged with pollution lawsuits.
"All this does is get you to the place where you can appeal the permit," she said. "You just can't be in court bringing up a bogus issue."
For example, Slaughter said, the Bland County Board of Supervisors is seeking permission to go to Circuit Court to challenge a permit issued by the state Air Pollution Control Board for a medical waste incinerator. If granted standing, the county still would have a high burden of proof to persuade a judge to take away the permit.
The Associated Press contributed to this story.
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