Bill to strip state environmental boards of permitting authority is a big mistake

February 10, 2022 12:02 am

Richard Walker and other opponents of a proposed Atlantic Coast Pipeline compressor station in Buckingham County protested at a State Air Pollution Control Board meeting in December, 2018, by standing and turning their backs during a Department of Environmental Quality presentation. (Ned Oliver/Virginia Mercury – Dec. 19, 2018)

By Shelton Miles 

Editor’s note: This is adapted from Mr. Miles’ remarks to the Senate Committee on Agriculture, Conservation and Natural Resources earlier this week. It has been edited for length and clarity.

There are not many tree huggers in my part of the commonwealth, but there are huge numbers of fishermen, canoeists, boaters and waterfront property owners who see the citizen members of the State Water Control Board as the forum for a fair hearing and securing minimal environmental protections that the Department of Environmental Quality has on occasion not been willing to provide.

That’s why Senate Bill 657, which would strip the water board and the State Air Pollution Control Board of its permitting power, is a mistake.

I have had dealings with the State Water Control Board since the late 1980s, in several different capacities, first in my role as chairman of the riparian property owners’ association along the Staunton River in Campbell, Charlotte, Halifax and Pittsylvania counties, where our citizens have on several occasions generated record turnouts at water board hearings. 

I have also served as a member of several technical advisory committees which were involved in developing regulations and other matters that ultimately came before the board.  

During those years from the late 1980s through 2004, I argued cases before the board, sought relief from the board and on one occasion filed suit against the board.

Senate panel advances bill to strip citizen boards’ environmental permitting power

Then, from 2004 to 2012 I was honored to serve as a member of the board, and from 2006 to 2012 as chairman. The last time significant legislative changes were made affecting the boards, I was intimately involved in those deliberations and the drafting.

So I speak from long experience when I testify about the value of the citizen boards and the necessity for them to have broad powers, not only in promulgating regulations but also in issuing permits and enforcement actions. 

The boards serve as a check on the power of a large bureaucracy.  They are there as protectors of both the permittees and the public. Several times in my experience I have been a party to the board and its permitting process offering protection or relief to a permittee that the department was not willing to grant.  I know of a number of specific instances where DEQ bureaucratic intransigence worked against a permittee: 

• In one, the public permitting process and citizen involvement produced an outcome more protective of the permittee(s) with better outcomes for the environment as well.

• In another, I was the hearing officer in a wrong-headed permitting action that was being forced by the bureaucracy upon a small business.  My intervention resulted in the action being dropped with a net gain for the environment.

• In a third instance, an applicant for a dredging permit in a drained residential lake was at the not-so-tender mercies of a low-level permit writer who was literally applying a regulation that had been written to apply to a completely different situation. The applicant could make no headway with DEQ, so as a last resort he approached me in my capacity as board chair.  After reviewing all pertinent information, I was able to intervene with senior staff and satisfactorily resolve the issue to the satisfaction of the homeowner’s association. If the board had lacked ultimate permitting authority, I have no confidence that staff would have listened, but instead reflexively circled the wagons to support their initial position.

These instances demonstrate that our current processes, which require broad public input, with the opportunity for an empowered independent SWCB to review and act, serve as a powerful corrective to bureaucracy, favorable to the interests of permittees, the public and the environment.  

When the bureaucracy does not listen, both permittees and the public can appeal to the board. Our DEQ staff normally gets it right, but no one should object to having a panel of citizens in public hearings and deliberation hear critics of the staff from both the regulated community and the public and check their work.

The boards’ permitting and enforcement procedures provide permittees and the public a simple, low cost way to be involved in matters of vital public interest.  All board deliberations and actions are done in full public view, with an extensive record kept. When the boards are involved, there are no back-room deals. On those rare occasions when the board takes action not recommended by staff, they are required by statute to provide a clear legal and factual reason for their deviation. If you favor transparency and accountability in government, you ought to be supporting broad authority for the boards.  

The boards are, unlike the department, not politically controlled. The DEQ director serves at the will of the governor. But board members, nominated by the governor in staggered terms over four years, confirmed by the legislature, serve definite terms and can only be removed for cause, providing consistency in environmental policy.  As such, the boards are better able to uphold their oaths and affirmations to abide by the Constitution and the laws of the commonwealth without regard to political pressures. In effect, our legislature, by creating and empowering the citizen boards, has placed a powerful check upon the executive branch of government in the environmental sphere.  

Opponents of a proposed Atlantic Coast Pipeline compressor station in Buckingham County protested outside the General Assembly Building ahead of a State Air Pollution Control Board meeting Wednesday. (Ned Oliver/Virginia Mercury – Dec. 19, 2018)

In my time serving on the water board, I appreciated the complementary nature of the boards’ regulatory, permitting and enforcement authorities. We had the opportunity to see how regulations we promulgated were applied to permits, enabling us to do a better job of approving both. And involvement in enforcement actions showed us how things could go wrong, again enabling us to do a better job in approving regulations and permits.

If you favor openness and transparency in government, if you favor checks on bureaucratic power, if you favor a division of powers between the respective branches of government, if you favor depoliticizing environmental decisions, if you favor creating a playing field where the small businessman has the same access to environmental decision makers as the state’s most powerful corporations, if you favor those decision makers being guided by the constitution, law, and scientific facts without fear of losing their job, if you favor any of these things, then you must oppose this bill. 

Could our citizen boards be improved? Certainly, but this bill misses that mark by a country mile. Whatever problems this bill intends to address, it errs by throwing the baby out with the bath water and by ending a process of environmental regulation and protection that has served the commonwealth well for decades.

Shelton Miles is a cattle farmer and pastor from Campbell County. He is a former chairman of the State Water Control Board.

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