In Virginia, Union Hill and racial tensions have put environmental justice back on the map

In 1991, a federal court in Virginia found that in King and Queen County, local landfill siting “had a disproportionate impact on black residents.” Three years later, a General Assembly-commissioned study concluded that statewide, minorities bore “a disproportionate share of any burdens or risks” related to living next to a landfill.

They were unusual official acknowledgements from Virginia of what is today widely accepted knowledge: that minorities and the poor are much more likely to face environmental hazards than their white or wealthy counterparts.

But then, for more than two decades, the state fell silent.

In that, the commonwealth wasn’t alone. Despite a plethora of local environmental justice ordinances across the nation and federal commitments — the Clinton administration considered the issue so important that it directed almost a dozen federal agencies to incorporate environmental justice into their missions and strategies and established a national advisory council on the matter — states proved reluctant to take action.

Until 2017. That year, Gov. Terry McAuliffe created the state’s first council on environmental justice, setting in motion a cascade of events. Suddenly environmental justice — the idea that all people, regardless of race, color, national origin or income, should be protected from environmental risks and have a say in decisions about those risks — has become, if not a hot topic, then at least a noticeable preoccupation in Richmond.

“If you can’t breathe, you can’t trust the water you drink, if you are being constantly inundated with a bad, unhealthy environment, you can’t succeed in life,” said U.S. Rep. Donald McEachin, D-Richmond. “To me that’s fundamental. It comes before almost any other issue I can think of.”

Over the past two years, McAuliffe’s successor, Ralph Northam, reconstituted the temporary council. The Virginia Department of Environmental Quality hired a third-party consultant to review how the agency was handling environmental justice issues. And “environmental justice” began popping up in official documents, including Northam’s Executive Order 43 committing Virginia to develop a 100 percent carbon-free grid by 2050.

For many activists, the state’s renewed focus was a breath of fresh air.

“It’s been good to see and hear from administration officials the words ‘environmental justice,’” said Kendyl Crawford, director of Virginia Interfaith Power & Light, the state chapter of a national group that takes a faith-based approach to environmental activism. “That’s a shift, that it’s part of the conversation.”

But at the same time, that shift left some wondering: Why now? Why, 40 years after environmental justice first broke into the national consciousness, was Virginia suddenly paying attention? Was it just that the American body politic is slow to accept new ideas, and especially reluctant to acknowledge the ways in which race shapes our lives and society? Or was there a catalyst for the reflowering of a movement once seen as the inheritor of the civil rights mantle passed down by Martin Luther King, Jr.?

“People believe it’s a new and novel movement, but it’s not. It’s been around for decades,” said Dawone Robinson, the Northeast/Mid-Atlantic director of energy affordability at the Natural Resources Defense Council and an outspoken environmental justice advocate. But “sometimes,” he said, “it takes a couple of breaking points.”

Union Hill: ‘almost a symbol of racism’

For many activists and policymakers, no single event has done more to put environmental justice on the Virginia map than the state’s approval of a plan by Dominion Energy to site a natural gas compressor station for the 600-mile Atlantic Coast Pipeline in the historic freedmen’s community of Union Hill.

The decision, which made national headlines and is still being litigated in the courts, was described as “almost a symbol of racism” by Robinson, “a very in-your-face specific issue on environmental justice.”

The EPA’s definition of environmental justice

Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision‐making process to have a healthy environment in which to live, learn, and work.

Part of what has made Union Hill so compelling has been the ways it has tapped into the two most complicated aspects of environmental justice cases: intent and impact.

Intent has long been environmental justice’s great stumbling block. Legally, plaintiffs charging officials or governments with environmental discrimination must establish not only that a minority group is being disproportionately impacted by a given decision, but that the officials or government deliberately sought to harm the minority group.

The latter task has proved almost impossible: even the case that gave birth to the environmental justice movement, Bean v. Southwestern Waste Management Corp., ended in failure for the majority-black Houston, Texas, community that was seeking to block a private company from building a landfill in their neighborhood. So did lawsuits related to EPA’s and North Carolina’s 1982 decision to bury thousands of cubic yards of illegally dumped contaminated soils in the impoverished community of Afton, a majority-black area of North Carolina’s most African American county. So too did the King and Queen landfill case in Virginia in 1991.

The language used by judges in these cases over the years is strikingly familiar. In Bean, the Houston judge called the city’s decision to permit the contested landfill “unfortunate and insensitive” but was unconvinced that it had been “motivated by purposeful racial discrimination.” The King and Queen judge admitted that local landfill siting disproportionately impacted minority communities but contended the decisions were not unconstitutional because they were not “intentionally discriminatory.”

And Dominion officials have consistently rationalized their placement of the Atlantic Coast Pipeline compressor station in Union Hill as a matter of economics and environmental footprint: the other alternative, they have argued, would require 1.1 more miles of pipeline to be built and a corresponding amount of land to be disturbed.

To Mary Finley-Brook, a professor of geography at the University of Richmond and a member of McAuliffe’s environmental justice council, though, the impact of environmentally hazardous projects on minority and low-income communities is clear.

“If it isn’t deliberate targeting, it’s a very obvious pattern,” she said.

Part of the resurrection of environmental justice in Virginia, then, may be the simple fact that communities dealing with problems on the ground have, after several decades of failure, realized that the laws on the state’s books are inadequate — that if they are to fight projects on environmental justice grounds, they must look to the legislature, rather than the courts, for substantive change.

Nowhere has the absence of legislation to guide decision-makers been more keenly felt than in the controversy over the Union Hill compressor station, during which department and appointed officials repeatedly floundered when charged with considering environmental justice concerns.

“The inclusion of the EJ community, I admit, the authorities — various authorities — were late in identifying potential EJ issues,” said Richard Langford, chair of the State Air Pollution Control Board, at the Jan. 8 meeting when that body approved the compressor station permit. And David Paylor, director of the Virginia DEQ, told the Mercury recently that the complaints raised over Union Hill had “required that we directly address [environmental justice] in ways that we haven’t before.”

The ways DEQ chose ultimately landed it, alongside Dominion, in the 4th Circuit Court of Appeals, where Chief Judge Roger Gregory in October grilled lawyers over why the department and the air board had not been more rigorous in assessing environmental justice concerns.

It’s a charge the state has disputed, claiming in a court brief that “while reasonable minds may disagree with the board’s ultimate conclusion, the record shows that it fully — and carefully — discharged its legal obligations when it reviewed the challenged permit.”

Those legal obligations come down to one provision of the Commonwealth’s Energy Policy that requires that the development of new energy facilities “not have a disproportionate adverse impact on economically disadvantaged or minority communities.” That open-ended phrase, which offers neither a definition of “disproportionate adverse impact” nor guidance on how to assess such impact, is the closest state law comes to addressing environmental justice.

“Right now the Code of Virginia doesn’t actually contain the phrase ‘environmental justice,’” said Crawford, save one reference to the advisory council included in legislation passed in 2019. Nor, she pointed out, does the state Constitution.

It’s a complaint Finley-Brook raised as well: “We don’t have any enforceable environmental justice code in the state of Virginia,” she said. “We need to go through our books and we need to put environmental justice into every single one with rigor, with measurement and with enforceability.”

Striking while the iron is hot

But while Union Hill has become the most prominent environmental justice case in Virginia’s history, it alone is not responsible for the uptick in interest, activists and environmentalists said.

“I do think there is a much larger focus and a much larger story,” said Robinson. “We have a racism problem in Virginia and in America, and we are seeing the connection of historical racism to disproportionate effects in housing, in energy, in the environment, in health, in education, in transportation and definitely in climate.”

Queen Zakia Shabazz, coordinator of the Virginia Environmental Justice Collaborative, a grassroots coalition organized in 2015 and credited by many as a key player in putting environmental justice back on the political map, agreed.

“Environmental justice, racial justice, they all intersect,” she said.

In this view, broader nationwide attention to racial inequities flowing from the 2014 Ferguson riots to the debate over Confederate monuments throughout the South has helped foster renewed interest in the ways that environmental hazards disproportionately affect low-income and minority communities.

In the past, “people weren’t seeing it, because every community has the part of town with trees and sidewalks and bike lanes, and it has the other part of town that’s saddled with the landfill,” said Crawford.

Today, however, said McEachin, who along with Arizona Democratic Rep. Raul Grijalva recently released a comprehensive draft bill on environmental justice, “there is a commonality across the country that we’ve got to fight these problems and we’ve got to strike while the proverbial iron is hot.”

Virginia has proven particularly fertile ground for such dialogue. In 2017, the state was rocked by the deadly Unite the Right white supremacist rally in Charlottesville; the following year, a New York Times report identified the state as having some of the highest eviction rates in the nation, a trend linked by Richmond Mayor Levar Stoney to preferable state treatment of property owners going back to plantation days.

And then, in 2019, as the state prepared to commemorate the 400th anniversary of the first arrival of slaves in the commonwealth, the capital was cast into turmoil by revelations that Northam and Attorney General Mark Herring — Democrats both — had engaged in blackface as young men.

“Virginians had to confront our own racial history,” said Robinson. “It posed an opportunity to Virginia to self-reflect on exactly where we are in our history of dealing with providing solutions to racism.”

Robinson has been particularly critical of Northam’s sincerity in addressing environmental justice.

While delivering the keynote speech of the annual Environment Virginia conference this past March in Lexington after a brief appearance by the governor, Robinson chastised Northam for both his support for the Union Hill compressor station and his failure to offer “concrete solutions regarding race, equity and the environment, or at least talk through some of the prominent environmental justice issues currently affecting citizens in the commonwealth.” And the governor’s decision to pull two members off the air board who had expressed concerns about the Union Hill compressor station’s siting as it weighed the Dominion permit also raised major doubts among environmentalists about how seriously he took environmental justice.

The election of Donald Trump to the presidency, too, likely had an effect of galvanizing organizations to action, said Crawford: “I think a lot of it has been a backlash to 2016.”

“Our politicians, they can’t ignore racial justice, they have to respond,” she said. “And one of the ways they’re choosing to respond is saying they’re committed to environmental justice.”

Will it last?

The new flush of optimism seen in environmental justice circles is tempered by a sense of wariness — a skepticism that politicians who speak in support of the movement’s aims aren’t willing to put their money where their mouths are or make the hard decisions environmental justice cases require.

“The fundamentals of environmental justice mean changing power, and they mean changing process and engagement of voices that have been marginalized,” said Finley-Brook.

They also often offer officials a no-win scenario. Deciding which constituents should get which resources, whether money or jobs or government services, is hard enough. Deciding which should suffer is harder still.

Paylor said that DEQ has already taken steps to improve its communication on sensitive environmental justice cases. Besides hiring an environmental justice consultant, he said that the agency has spent the past year “beefing up” its outreach efforts, including developing a more responsive social media presence, reworking its website and adding extra informational meetings not required by law for projects “when we have reason to believe that there’s going to be public interest concerns.”

“We want the public to know what is being proposed and to know that they play a role and how they can play a meaningful role,” he said.

But to some environmental justice advocates, better communication isn’t possible without better representation of minority and low-income communities on state governing bodies.

“When we look at our agency heads, committee chairmen and women, [State Corporation Commission] commissioners, anyone in power to either create, design or implement policymaking, we need better representation of Virginia’s demographics in those arenas, and we don’t see them,” Robinson said. “That’s the first barrier. … That’s hard. It takes work. But I think as Virginians we need to focus not on doing what is easy, but doing what is right and just.”

Staffing boards and commissions is only the first step, said several activists. The state also has to listen to them.

The concern isn’t abstract. While advocates in 2017 hailed McAuliffe’s creation of an environmental justice council, attitudes soured the following year when Northam’s administration turned its back on the group’s recommendation that the state revoke water quality permits for the Atlantic Coast and Mountain Valley pipelines and suspend its Union Hill permit decision.

Tensions only increased when Northam reconstituted the body and the General Assembly failed to pass legislation that would have made the council permanent.

“There’s no teeth. There’s no rigor. There’s no ability to actually enforce anything,” said Finley-Brook, who after serving on the inaugural council was not reappointed by Northam.

The complaint was echoed by others, including Shabazz, who had hoped to see more institutional changes, particularly related to the permitting of new projects, come out of the advisory council.

“The governor has said that (environmental justice is a priority),” she said, “so we are trying to hold him to that. We no longer want to just see things in writing and on paper, but we want to see it in deeds and in action.”