ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Wednesday, January 22, 1997 TAG: 9701220047
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: FROM WIRE AND STAFF REPORTS
The Allen administration has lost a U.S. Supreme Court challenge to the federal requirement that citizens have the right to challenge state environmental permits for factories and power plants.
Virginia was the only state in the nation denying its residents the right to a court challenge of pollution permits. The state has been threatened with the loss of federal highway money because of that position.
After the high court's decision Monday, Gov. George Allen immediately pledged to bring Virginia in line with federal guidelines, but said the legal battle still served a purpose for Virginians.
``I do think it is important to probe the limits of our freedom as Virginians,'' a statement from Allen said.
Environmental groups, meanwhile, heralded the high court's decision, which means residents can sue the state over air and water pollution permits. Previously, only polluters who were denied a permit were allowed to sue.
``It's a landmark decision for all Virginians,'' said Kurt Erickson, executive director of the American Lung Association of Northern Virginia.
Kay Slaughter of the Southern Environmental Law Center in Charlottesville said the Supreme Court's ruling means state regulatory agencies will weigh the concerns of residents when they issue environmental permits. Slaughter represented several Virginia environmental and health groups in the court fight.
In the past, she said, state agencies took residents' comments at hearings on proposed permits, but without the right of residents to challenge the agencies' decisions in court, it was essentially a meaningless exercise. The court's action will create a "more even playing field in the administrative process," she said.
Last year, the General Assembly passed a bill sponsored by Del. Tayloe Murphy, D-Richmond County, to grant citizen standing to sue over environmental permits, but supporters could only secure Allen's support for the bill by inserting a provision that it would not take effect unless Allen lost his lawsuit against the federal government over the issue. Murphy had introduced another measure in this year's General Assembly to remove that provision and go ahead and grant residents the right to sue.
Critics said Allen's statement Tuesday, however, gives the impression that the governor had initiated last year's legislation to grant citizen standing to sue.
"With this final adjudication by the U.S. Supreme Court, Virginia's permitting system will change in accordance with an amendment I proposed last year," the governor's statement said. "With those amendments, the General Assembly adopted, and I signed legislation which accomplished the goal of expanding Virginia's laws pertaining to citizen standing to challenge state decisions on air, water and waste permits," Allen said.
Slaughter and others were astounded by Allen's remarks.
"It's really ridiculous," Slaughter said. Allen had the chance last March to accept citizen standing when a federal appeals court ruled in favor of residents' right to challenge permits in court, she said. Instead, Slaughter said, Allen has spent taxpayers' money "over this ideological battle over states' rights." It was the same as with Allen's refusal to accept federal Goals 2000 money for education, she said.
Allen's statement Tuesday was "something out of George Orwell's `1984,''' said Bill Tanger of Roanoke. He is president of Friends of the Rivers of Virginia, one of the intervenors represented by Slaughter who challenged Allen's position. "That's doublespeak," he said.
Tanger said Allen had tried to obstruct the result of Tuesday's court ruling. "It has given citizens the rights they should have had all along," he said.
The court, without comment, turned down the state's argument that the federal Clean Air Act violates states' rights by forcing them to enforce a federal regulatory program.
The 27-year-old Clean Air Act was amended in 1990 to create a permit program to control pollution from stationary sources such as factories and power plants.
Under the law, states can develop their own permit programs to be approved by the Environmental Protection Agency under federal standards.
If a state doesn't meet the deadline to enact an approved plan, federal officials can withhold highway funds.
The government also can stiffen a requirement that allows new factories or plants to operate only if pollution from other sources is reduced.
Eventually, the EPA can take over administration of the pollution control program for that state. Such sanctions so far have not been imposed on any state.
In December 1994, the EPA refused to approve Virginia's permit program. Among other reasons, officials said the program did not allow adequate court review of permit decisions.
Virginia officials challenged the EPA's disapproval, but the 4th U.S. Circuit Court of Appeals ruled for the federal government. ``It makes good common sense to establish consistent standards for judicial review for all such permits,'' Allen said. ``We are all committed to working for cleaner air and water.''
The EPA properly interpreted the law regarding judicial review of permit decisions, the appeals court said. It also rejected the state's argument that sanctions allowed by the Clean Air Act unconstitutionally required the state to administer a federal program.
In the appeal acted on Monday, the state's lawyers had argued, ``Congress simply may not order the states to enact or enforce a federal regulatory program.''
Congress exceeded its authority to place conditions on states' receipt of federal funds, the appeal said.
Justice Department lawyers said the Clean Air Act does not require states to adopt a permit program, but uses incentives to ``induce'' them to do so.
- Staff writer Greg Edwards contributed to this report.
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