When the U.S. 4th Circuit Court of Appeals struck down an air permit last year for a compressor station Dominion Energy wanted to site in the majority-Black community of Union Hill as part of the 600-mile Atlantic Coast Pipeline, the judges admonished state officials that “environmental justice is not merely a box to be checked.”
In the wake of the ruling, newly ascendant Democrats in the General Assembly looked to legislation as a fix. Environmental justice — the idea that no group should bear a disproportionate share of negative environmental consequences and that communities impacted should have “meaningful involvement” in the decision-making process — was added to state code and its promotion became declared state policy.
But as the 2021 session drew to a close, Democrats split over what to do next.
“I’m sorry to say we are very far apart on environmental justice issues with the other body,” Del. Shelly Simonds, D-Newport News, told colleagues in a late-night floor speech in the House of Delegates on the last day of the session. “I think that we are a long way off from where we need to be in having consensus on the need for environmental justice.”
A disagreement between the House and Senate ultimately led to the defeat of the two major environmental justice proposals lawmakers weighed this year. One would have made permanent an interagency working group charged with examining how state agencies are handling environmental justice issues. The other, sought by the state’s Department of Environmental Quality, would have required developers seeking certain environmental permits to notify potentially affected communities far earlier in the permit review process than current law requires and arrange a public meeting.
But as lawmakers wrangled over the bills this session, they hit impasse after impasse. Senators, concerned about the effect on economic development, sought to kill or narrow the scope, fretting about proposals they called “wide open.”
Environmental justice in Virginia law
“Environmental justice” means the fair treatment and meaningful involvement of every person, regardless of race, color, national origin, income, faith, or disability, regarding the development, implementation, or enforcement of any environmental law, regulation, or policy. — Code of Virginia, § 2.2-234
“A major stationary source of air pollution sounds like a bad thing,” Sen. Chap Petersen, D-Fairfax City, said during one hearing on the notice bill shortly before it was voted down. “It’s also a job for somebody. It’s also a manufacturing facility. … And if we pass this bill in its current form, I worry that it would be a job killer in rural areas like you’ve never seen before.”
Other divides emerged. The House pushed for legislation that would take into account “cumulative impacts” of projects over time, while the Senate balked at how broadly the federally defined term could be construed. The House sought to require local governments to consider environmental justice impacts in their comprehensive planning, which the Senate resisted.
“For some of the folks on the relevant committees, this isn’t their experience. They don’t represent districts where they see a cumulative impact or they see how projects impact the communities,” said Sen. Jennifer McClellan, D-Richmond, who sponsored the notice bill. “I represent Charles City County, which has a landfill, two power plant proposals, and there’s already sort of a high incidence of cancer, asthma and health effects. So it’s easier for me to see.”
Sen. Montgomery “Monty” Mason, D-Williamsburg, one of the key Senate negotiators on the working group bill, said addressing environmental justice in Virginia would “require a long-term approach and view.”
“I’m not sure I heard the topic prior to 2020,” he said. “It took many, many years to get to this point, so it stands to reason that it’s going to take more than two” to formulate comprehensive solutions.
“Rome,” he added, “wasn’t conquered in two years.”
A whole-of-government approach
The most debated of this year’s environmental justice bills was the interagency working group proposal carried by Simonds in the House and Sen. Ghazala Hashmi, D-Chesterfield, in the Senate.
Environmental consultancy Skeo Solutions, which spent 18 months studying how DEQ could better handle environmental justice issues, had recommended a whole-of-government approach, saying in its final report that “achieving environmental justice cannot be accomplished by the actions of one agency alone.” In 2020, budget language signed by Gov. Ralph Northam created the working group on a temporary basis. Its first report, released Thursday, found that 35 state agencies would be “directly affected by the creation and implementation of a commonwealth-wide environmental justice policy.”
Costs proved a major concern for some lawmakers, though. Early versions of Hashmi’s and Simonds’ bills called on each agency to adopt an environmental justice policy and evaluate how their actions could impact environmental justice — a proposal that analysts in the state Department of Planning and Budget said would cost millions, including about $1.3 million for DEQ alone to hire 12 extra people.
Advocates, as well as some lawmakers, were skeptical of the estimates. Gustavo Angeles, the environmental justice coordinator for the Virginia Sierra Club and a member of the Virginia Environmental Justice Collaborative, which helped draft the legislation, said the numbers were “inflated.” And Del. Kathy Tran, D-Fairfax, during one hearing called department fiscal estimates “a mysterious process to me in terms of how those numbers get crunched.”
“I would certainly hope, with all due respect to (DEQ) Director Paylor, that looking at how communities are being impacted by actions of DEQ is a part of the consideration process for projects already,” she said.
While the agency provision was eventually dropped, cost concerns also dogged a House proposal requiring local governments to consider environmental justice as part of their comprehensive plan, a non-binding document all localities in Virginia are required to produce every decade to identify how the land they oversee would best be developed.
To Simonds, that piece of the bill was critical. It had been an explicit recommendation of the Skeo study of DEQ, reflecting one of the key tensions that have riven agency permitting processes over the past few years. While Virginia vests its local governments with primary authority over land use decisions, DEQ and the state’s environmental boards are also charged with assessing “site suitability.” Over the years state officials have largely relied on local assessments of suitability, an approach that was criticized by the 4th Circuit Court of Appeals in its Union Hill ruling because it failed to incorporate environmental justice considerations.
“There’s broad consensus out there that we have to have this kind of thinking and mindset from the local level, no matter how small a community, all the way up to the state level,” Simonds said during one hearing. “And if we don’t, it can cause huge problems down the line when projects are not looked at from the lens of environmental justice.”
Some local governments worried about the expense of meeting the requirement. Fairfax Assistant County Attorney Chris Sigler said the bill would require Fairfax to hire consultants “at great cost,” and “if we can’t do it, smaller localities certainly won’t be able to do it.”
“We don’t want to see development delayed in our county,” he said.
Ultimately, the local government provision would be one of several that would tank the bill, with the Senate unwilling to brook a version of the law that included it.
“It was a nonsequitur. It was like we had Bill A and Bill B, and they should have been two different pieces of legislation,” said Mason. Restrictions on in-person negotiations played a role too, he said: “Had we been able to sit around the table in the Capitol or the General Assembly building and hash this out, we may have been able to get somewhere.”
As the session drew to a close, the two chambers remained deadlocked: The Senate saw the primary purpose of the bill as creating the interagency working group on a permanent basis. The House wanted more: not just the local government piece, but also statutorily defined responsibilities for the working group, such as the need to identify environmental justice communities, determine how they are affected by state agencies’ regulatory actions and consider cumulative environmental impacts.
“The Senate signed off on what was a limited, limited approach,” said Mason. “It just wasn’t enough for them to move forward.”
Hashmi, who had sponsored the Senate version, said that she “wasn’t quite happy” with the pared-down bill that emerged, “but I saw it as a way forward.”
“I think there is some degree of conversation that still needs to happen, further education of what we mean by environmental justice, and in particular which communities have been historically impacted,” she said. “And then the methodology for reversing past historical injustices and to be thoughtful that any future action doesn’t perpetuate the injustice that we’ve seen.”
For the session’s other major environmental justice bill, which centered on strengthening notice requirements for projects with large environmental impacts, defeat came earlier.
A DEQ-backed bill carried by McClellan in the Senate and Del. Cliff Hayes, D-Chesapeake, in the House, the legislation would have required applicants for major-source air permits, certain water and groundwater withdrawal permits and hazardous waste, landfill and transfer station permits to begin community outreach prior to DEQ deeming their application complete. Under the current process, applicants work extensively with the agency to work out problems with their applications before formal public notice is made and public comment periods begin.
“Time and again when we have a problem with permitting, especially recently, we hear from the community, ‘We never knew,’” Paylor told a House committee. “So what we have tried to do here is thread the needle, understanding this is a big and complicated issue, but it’s one we’ve got to start to address.”
Industry as well as the agricultural sector, however, reacted with alarm, describing the new requirements as “onerous” for farmers and businesses.
The Virginia Farm Bureau Federation, Virginia Agribusiness Council, Virginia Forestry Association, Virginia Manufacturers Association and others argued that many businesses seeking such permits were not equipped to handle the law’s mandates, including holding a public meeting, publishing notices in English and Spanish in newspapers, at the project site and on social media and mailing notice of the proposal to multiple parties, including all property owners within three miles of the site.
Brett Vassey, CEO and president of the Virginia Manufacturers Association, pointed in particular to the public meeting requirement as a concern.
“Many of you have been to these meetings where it can get dangerous quite frankly because of the heat and the passion around these issues. And this is all going to be borne by a private business that may not be sophisticated in knowing how to do any of this,” he said. “This is imposing a public hearing process on private businesses in order to just start the permit process. We think that that’s a DEQ responsibility.”
Economic development concerns proved to be one of the most persuasive arguments against the legislation for some senators. People involved in negotiations also indicated that while DEQ was strongly pushing for the bill, not everyone in the Northam administration was sold on the idea.
Nor was the Senate Committee on Agriculture, Natural Resources and Chesapeake, where both the House and Senate proposals died.
“If we pass a bill like this, it’s basically saying to a lot of companies looking to invest in rural Virginia, don’t bother. Look at all these regulations,” said Petersen, who chairs the committee. “And having represented industrial businesses, you look at something like this, you’re like, I’ve got 49 other states I can do business in.”
McClellan acknowledged the bill’s impending defeat in committee, telling colleagues, “If we can’t do it today, I accept that.” But, she added, “I sure hope that we make it a priority to find the right balance to allow people to be heard.”
‘A desire to get it’
Despite the failure of both proposals, many proponents struck an optimistic note about improving Virginia’s approach to environmental justice.
“Even among people who ultimately didn’t support the bill, I see a desire to get it,” said McClellan. “I could see the light switch on where people are like, ‘We get the problem and we want to get there.’ It was just sort of a struggle to figure out ‘how do we get there in a way that finds that balance.’”
Paylor said DEQ plans to move forward with other goals identified by the Skeo study.
“DEQ still has significant authority for environmental justice and is committed to doing the most with it we can with the authority we have,” he said. Besides adding additional environmental justice and community outreach staff using part of an additional $12 million the department was allotted under the budget approved by lawmakers, DEQ will also begin a two-year strategic planning process this month.
“The greater the expectations are, the more resources we will need and we clearly don’t have enough resources now to meet everything that it would be helpful for us to do,” he said.
State reports are also increasingly focusing on environmental justice. The second report by Northam’s Commission to Examine Racial Inequity in Virginia Law, released in February, specifically included environmental injustice as one of the “lingering effects of the almost four centuries of Virginia’s state-approved systemic racism.”
“Racial inequity linked to environmental justice has deep roots in the commonwealth,” the commission found.
“I would say the administration is conscious these are good government policies that need to be put in law,” said Angeles of the Sierra Club Virginia chapter and the Environmental Justice Collaborative. “The administration has noticed through time that this is an issue they need to be acting on.”
On Thursday, Northam’s administration released the long-awaited first report of the temporary interagency working group, which under existing law is authorized to continue meeting through July 2022. At the same time the governor directed the group to examine how state agencies can address the environmental justice implications of their actions, as well as community notification issues and the cumulative impacts of multiple agency actions.
“This report represents an important first step toward securing justice for disadvantaged communities that have been disproportionately burdened by the impacts of climate change,” said Northam. “While I am disappointed the General Assembly did not build on our progress from last year … I will continue to do everything within my power to address current and historical injustices and embed environmental justice into the decision-making process across state government.”