After several years of tumult, Air Board members reexamine public engagement process

Virginia’s State Air Pollution Control Board, which has seen meetings repeatedly attract hundreds of angry citizens and called in police to keep order over the past few years, has created a four-member committee to reexamine the board’s public engagement process.

“There were lots of concerns raised during the recent permit matters we considered about the adequacy of the agency’s public outreach,” said board Vice Chair Roy Hoagland of Midlothian in an interview with the Mercury, referring to the Virginia Department of Environmental Quality. And, he said later, “swirling around all of it was the whole issue of outreach to vulnerable and environmental justice communities.”

Besides Hoagland, committee members include board Chair Ignacia Moreno of McLean and board members Kajal Kapur of Albemarle and Gail Bush of Stafford. 

Among the priorities identified by the committee at a virtual meeting Monday was the need to examine the public’s ability to address the board rather than just DEQ on all regulations and controversial new permits, transparency issues surrounding advice provided to the board by the Office of the Attorney General and the need to identify at-risk communities comprehensively rather than during specific permit deliberations. 

“I think a large question for the Air Pollution Control Board is what do we do in this new world to meet the intent of the law to ensure the public is aware, educated and we’re transparent in our work,” said Hoagland. “Because the same old, same old we know doesn’t work. Same old, same old may be legal, but it’s not sufficient.”

While the Committee on Public Engagement was proposed as an ad hoc body in the immediate wake of the Air Board’s controversial June 2019 approval of an air permit for the Chickahominy Power Station in Charles City County, that’s not the only case to have sparked backlash from the public over the openness and transparency of the state’s environmental decision-making process.

Most notable in recent years was the board’s decision to grant an air permit for a compressor station that was part of the now-cancelled Atlantic Coast Pipeline in the predominantly Black community of Union Hill in Buckingham County. The permit was ultimately overturned by the U.S. Court of Appeals for the 4th Circuit, which harshly criticized DEQ and the Air Board for their failures to evaluate the project’s environmental justice impacts sufficiently and consider the use of less-polluting electric motors in lieu of gas-fired turbines. The board vote on the permit came after Gov. Ralph Northam abruptly removed two members who had voiced reservations about the project.

Of the many concerns raised by the public over the past few years, nine consistent issues were identified by the committee, ranging from providing earlier public notice of pending permit action and longer formal public comment periods to increasing public access to DEQ staff and strengthening outreach procedures, particularly with the board, which is largely isolated from the public despite serving as a citizen body. 

Much of the latter issue can be attributed to guidance from DEQ and the state Office of the Attorney General. Included in a list of best practices identified by a white paper that was issued to the Air Board this January by DEQ Director David Paylor and reviewed by the OAG’s Environmental Section was the directive that “board members should not engage in communications regarding matters before, or expected to be, before the board and should advise people interested in sharing information that to ensure their information is included in the agency record they should use the established processes for commenting on matters before the board.”

The aim is to ensure that there is no “defect” in the public record attached to a case that could jeopardize the state’s position in a lawsuit over a permit or regulation it has approved. 

The committee, however, is seeking further clarification from the attorney general on whether the white paper’s stringent rules for communication with the public are mandated by law.

“We are not focusing on the department’s existing or recommended practices,” the committee wrote in a July 29 letter to the attorney general asking for advice. “We are focusing on the law. The question is not whether DEQ’s ‘Recommended Practices’ conform to the law. Rather, we wish to know what the law states so that we can then determine what are and are not permissible communications.”

Committee member Kapur told the Mercury that one aim is to build more sustained communication with the public, “not just when we have a permit or a regulatory action, but trying to have involvement and sort of helping the public share its thoughts and opinions, not outside of those processes but not confined to the processes.

“If (people) are telling us that they want more broader or deeper engagement or a public process that is more open to them, then I think we need to hear that and bring about some ways and processes of doing that,” she said.

Among the priorities Kapur identified at a meeting last week was for Virginia to identify and inventory environmental justice communities to assist the state in conducting educational and outreach efforts in a more ongoing fashion.

Recent permit applications, including both the Chickahominy and Buckingham permits, have been dogged by disputes over whether the site of a proposed facility could be defined as an environmental justice community, containing minority or economically disadvantaged populations in proportions above those found in the surrounding county, city or state at large.

Mapping out communities ahead of time using tools beyond the U.S. Environmental Protection Agency’s EJSCREEN tool could help the Air Board in its ongoing work, said Kapur. 

The ad hoc committee has also requested that DEQ provide it comparative information about how other states, particularly those that participate in the Regional Greenhouse Gas Initiative that Virginia joined this July, handle public participation. 

“We have to know what other states are doing so that we can ensure that we’re at least meeting some sort of bare minimum standard,” committee member Bush said during the July 29 meeting. “So if there’s a standard out there that we’re not aware of, it would be helpful to look at that.”

DEQ Office of Regulatory Affairs Director Cindy Berndt told the committee that some work was done by the Joint Legislative Audit and Review Commission a decade ago comparing Virginia’s regulatory process but that “for permits, there’s been no actual comparison of permit processes.”