Virginia Initiates Regulatory Process to Consider Environmental Justice in Air Permitting Actions

The Virginia Code requires a site suitability determination for all projects seeking air emission permits. Va. Code 10.1-1307.E. While this provision has been in place for decades, it has never received significant attention, and has historically been interpreted to require compliance with local zoning laws. In 2020, however, environmental groups used the law to successfully challenge a minor new source permit for a compressor station associated with an interstate natural gas pipeline. They argued that the site suitability analysis undertaken by the Virginia Department of Environmental Quality (DEQ) did not adequately address or consider environmental justice concerns, and the Fourth Circuit Court of Appeals agreed. Friends of Buckinghamv. State Air Pollution Control Bd., 947 F. 3d 68 (4^th Cir. 2020).

In response to this court decision, DEQ has initiated the regulatory development process, seeking to provide clarity and to establish a process for the site suitability review required by the Virginia Code. Virginia's site suitability provision outlines four factors to consider:

• The character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened to be caused;
• The social and economic value of the activity involved;
• The suitability of the activity to the area in which it is located; and
• The scientific and economic practicality of reducing or eliminating the discharge resulting from such activity.

Addressing the first and third factors above, the Fourth Circuit held that the agency should consider the community impacted by the emissions, and determine whether that community is an environmental justice community. The agency must also assess how the emissions from the project would impact the specific community. Compliance with National Ambient Air Quality Standards and state emissions standards is not sufficient. The court did not address the second and fourth criteria found in the Virginia Code, and did not opine on how the four factors should be balanced or weighted.

During the 2021 Virginia General Assembly session, several bills were introduced to provide for enhanced community outreach during environmental permitting, and to provide for additional cumulative impact and environmental justice reviews as part of the permitting process. While those bills did not affect the site suitability provision and were not specific to air permitting (they would have applied to all water, waste, and air permits), they included components drawn from the Friends of Buckingham decision as well as environmental justice provisions recently enacted in New Jersey. None of this legislation passed.

It is against this backdrop that Virginia will be moving forward with its site suitability regulatory action. Virginia has set an aggressive schedule for development of the regulation, and has convened a regulatory advisory panel of stakeholders to aid in that process.