Must Virginia's DEQ consider environmental justice when deciding whether to permit a new landfill?

Plain-English summary

Senator Ghazala Hashmi asked whether Virginia's 2020 Environmental Justice Act (EJA) is just an aspirational policy statement or whether it imposes enforceable duties on the Department of Environmental Quality (DEQ) when evaluating landfill applications. The AG concluded the EJA is self-executing and creates duties.

The EJA (§§ 2.2-234 to -235) declares that "[i]t is the policy of the Commonwealth to promote environmental justice and to ensure that it is carried out throughout the Commonwealth, with a focus on environmental justice communities and fenceline communities." It then defines "environmental justice," "meaningful involvement," and "fair treatment" with specific operational content. A statute that contains both a policy and standards for enforcing it is generally self-executing under cases like Robb v. Shockoe Slip Foundation, 228 Va. 678 (1985), and Terry v. Mazor, 234 Va. 442 (1987).

Applying that to landfills: the Virginia Waste Management Act requires DEQ to make two determinations before issuing a new landfill permit. Under § 10.1-1408.1(D)(1), DEQ must find that the facility protects human health and the environment, that there is need for the capacity, that infrastructure is sufficient, that the public interest is served, and so on, after public hearing. Under § 10.1-1408.4(A), DEQ must determine that the site is suitable, considering transportation, parks, water supplies, marine resources, wetlands, historic sites, and "such others as he deems appropriate." Both determinations are precisely the kind of agency action where environmental justice considerations have to be applied.

The opinion grounds this conclusion in the Fourth Circuit's analogous 2020 ruling in Friends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68 (4th Cir. 2020), which vacated an air permit because the Air Pollution Control Board failed to consider environmental-justice impacts on a fenceline community, citing the Virginia Energy Policy environmental-justice provisions. Even if the EJA were not self-executing, the AG concludes, the proper reading of the Waste Management Act's "public interest" and DEQ "deems appropriate" language requires DEQ to apply environmental-justice considerations.

What this means for you

Fenceline community residents

The opinion holds that the EJA is self-executing and confers a right to "meaningful involvement," which the Act defines as access and opportunities to participate in the full cycle of DEQ's decision-making, plus a duty on decision makers to seek out and consider that participation. It reads the Waste Management Act's § 10.1-1408.1(D) threshold determination and § 10.1-1408.4 site-suitability determination as the points where DEQ must carry out environmental justice for affected communities.

Landfill developers

The opinion treats environmental-justice analysis as a required part of DEQ's record on a landfill permit, under §§ 10.1-1408.1(D) and 10.1-1408.4, not an optional consideration. Relying on Friends of Buckingham, it reads the Director's "site suitability" and "public interest" duties to include consideration of disproportionate impact on environmental-justice and fenceline communities.

DEQ permit writers and agency counsel

The opinion holds that the Director must ensure environmental justice (the EJA's "fair treatment" and "meaningful involvement") is carried out when making the § 10.1-1408.1(D) threshold determination and the § 10.1-1408.4 site-suitability determination. Quoting Friends of Buckingham, it states that "environmental justice is not merely a box to be checked" and that failing to consider disproportionate impact produces a flawed analysis.

Common questions

Q: I live near a proposed landfill site. Can I sue if DEQ ignores environmental justice?
A: Per this 2021 opinion, the EJA is self-executing and its duties are set out in terms that provide standards for judicial enforcement. The opinion relies on Friends of Buckingham, where the Fourth Circuit vacated an air permit issued without an adequate environmental-justice analysis. Whether and how to bring a particular challenge is beyond what the opinion addresses.

Q: What is a "fenceline community"?
A: A community adjacent to or near a facility whose residents bear disproportionate environmental burdens. The EJA defines "environmental justice community" and "fenceline community" within § 2.2-234 with statutory specificity.

Q: Does this apply to existing permits or only new ones?
A: The opinion addresses new permit decisions. Renewal and modification decisions are also DEQ permit decisions, and the EJA's coverage extends to them as well, though the practical scope of EJ analysis on renewal may differ from new construction.

Q: My organization wants to file a comment on a landfill permit. How does the EJA help?
A: Under the opinion, the EJA's "meaningful involvement" definition requires that affected and vulnerable community residents have access and opportunities to participate in the full decision-making cycle and that decision makers seek out and consider that participation. The opinion ties that requirement to DEQ's § 10.1-1408.1(D) and § 10.1-1408.4 determinations.

Q: What if DEQ says it "considered" EJ but issued the permit anyway?
A: Friends of Buckingham requires more than a check-the-box statement. "Environmental justice is not merely a box to be checked." DEQ must perform a substantive analysis of disproportionate impact and explain its conclusions.

Citations and references

Statutes:

• Va. Code § 2.2-234 (EJA definitions)
• Va. Code § 2.2-235 (EJA policy)
• Va. Code § 10.1-1408.1 (Solid waste permits)
• Va. Code § 10.1-1408.4 (Landfill site suitability)
• Va. Code § 67-102 (Virginia Energy Policy EJ)

Cases:

• Friends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68 (4th Cir. 2020) (Fourth Circuit; vacated air permit for failure to consider environmental justice)
• Campbell County v. Royal, 283 Va. 4 (2012) (Virginia Supreme Court; VWMA background)
• Browning-Ferris Indus. v. Residents Involved in Saving the Env't, 254 Va. 278 (1997) (Virginia Supreme Court)
• Terry v. Mazor, 234 Va. 442 (1987) (Virginia Supreme Court; self-executing statute)
• Robb v. Shockoe Slip Found., 228 Va. 678 (1985) (Virginia Supreme Court; self-executing constitutional/statutory provisions)
• United States v. Paul, 23 F.3d 365 (11th Cir. 1994) (federal circuit court)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-064-Hashmi-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

December 3, 2021

The Honorable Ghazala F. Hashmi
Member, Senate of Virginia
Post Office Box 396
Richmond, Virginia 23218

Dear Senator Hashmi:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the policy established by the Virginia Environmental Justice Act (§§ 2.2-234 through -235) (the EJA) is a factor that must be considered by the Director of the Department of Environmental Quality (the "Director") in making his determination about whether the site for a potential landfill is suitable under § 10.1-1408.4 of the Virginia Waste Management Act (the VWMA).

Statutory Background

Your question requires analysis of two separate statutory schemes: the VWMA and the EJA.

Enacted in 1986, the VWMA authorizes the Virginia Waste Management Board and the Director to supervise and control waste management activities in the Commonwealth. The purpose of the VWMA is to "protect the Commonwealth's environment, thereby promoting the health and well-being of her citizens." Article 2 of the VWMA, Code §§ 10.1-1408.1 through -1413.1, governs solid waste landfills. Section 10.1-1408.1(A) prohibits the operation of a landfill without a permit. Subsection (B) of that section lists the information required for a complete application for a landfill permit. Subsection (C)(2) of that section requires an applicant to make a disclosure statement.

Based on the information in the permit application, the Director is required under § 10.1-1408.1(D) to undertake an investigation and to make a threshold determination about the landfill application:

[N]o permit for a new solid waste management facility ... shall be issued until the Director has determined, after an investigation and analysis of the potential human health, environmental, transportation infrastructure, and transportation safety impacts and needs and an evaluation of comments by the host government, other local governments and interested persons, that (i) the proposed facility ... protects present and future human health and safety and the environment; (ii) that there is a need for the additional capacity; (iii) sufficient infrastructure will exist to safely handle the waste flow; (iv) the increase is consistent with locality-imposed or state-imposed daily disposal limits; (v) the public interest will be served by the proposed facility's operation ..., and (vi) the proposed solid waste management facility is consistent with regional and local solid waste management plans developed pursuant to § 10.1-1411.

Only after the Director has made a determination under § 10.1-1408.1(D) is the question of site suitability reached under § 10.1-1408.4. That section requires the Director to determine in writing that the site is suitable, considering specified factors including transportation adequacy, impact on parks/water/wetlands/historic sites/wildlife/tourism, and geological suitability, plus "such others as he deems appropriate."

The EJA, passed in 2020, provides that "[i]t is the policy of the Commonwealth to promote environmental justice and to ensure that it is carried out throughout the Commonwealth, with a focus on environmental justice communities and fenceline communities." Under the EJA, "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." "Meaningful involvement" requires that "(i) affected and vulnerable community residents have access and opportunities to participate in the full cycle of the decision-making process about a proposed activity that will affect their environment or health and (ii) decision makers will seek out and consider such participation, allowing the views and perspectives of community residents to shape and influence the decision." The EJA defines "fair treatment" as "the equitable consideration of all people whereby no group of people bears a disproportionate share of any negative environmental consequence resulting from an industrial, governmental, or commercial operation, program, or policy."

Applicable Law and Discussion

Broad statements of policy in the Code are not, by themselves, self-executing and enforceable. If, however, a statute contains a statement of policy that is accompanied by language establishing the means of carrying out the policy, the statute may be deemed self-executing in certain instances. If the statute provides sufficiently clear and detailed standards for enforcing a duty that is imposed, or protecting a right conferred, it is generally deemed self-executing.

The EJA does not merely indicate a broad policy goal without setting forth the means by which that policy may be carried out. Instead, the EJA imposes specific duties on the Commonwealth and confers certain rights to individuals, which are set forth in terms that provide sufficiently clear and detailed standards for judicial enforcement. Accordingly, the EJA is self-executing and requires that the Director provide environmental justice through the fair treatment and meaningful involvement of all affected people in environmental justice communities and fenceline communities when making the threshold determination under § 10.1-1408.1(D) or the site suitability determination under § 10.1-1408.4. Even if the EJA were not self-executing, however, a proper reading of these provisions requires the public engagement and consideration of environmental justice considerations under the pertinent provisions of the VWMA. Section 10.1-1408.1(D) requires consideration of public comment on the factors, including the overall "public interest" listed in that section.

Although there is no case law interpreting the interplay of the VWMA and the EJA, there is precedent arising from the interplay of Virginia's air pollution control law and environmental justice provisions of the Virginia Energy Policy. In Friends of Buckingham v. State Air Pollution Control Board, the petitioners challenged an air permit approved by DEQ and approved by the Air Pollution Control Board for failure, among other things, to consider sufficiently and make specific findings regarding environmental justice. As with the VWMA for landfills, no source of potential air pollution may be constructed and operated without a permit. Before issuing a permit, DEQ and the Board must consider the factors listed in § 10.1-1307(E), including site suitability and public safety and health, just as the Director needs to do for a landfill permit under §§ 10.1-1408.1(D) and -1408.4. Although the Environmental Justice Act had not yet been enacted, the Virginia Energy Policy required all agencies, including the Air Board, "to ensure that development of new" energy facilities "does not have a disproportionate adverse impact on economically disadvantaged or minority communities." The Fourth Circuit vacated the permit, holding that the Air Board had not adequately "performed its statutory duty to determine whether this facility is suitable for this site, in light of [environmental justice] and potential health risks for the people of [the community]." As the Court observed, "environmental justice is not merely a box to be checked, and the Board's failure to consider the disproportionate impact on those closest to the [facility] resulted in a flawed analysis."

Conclusion

Accordingly, it is my opinion that the Environmental Justice Act not only sets forth a policy of the Commonwealth, but also imposes specific, enforceable duties on the Commonwealth to ensure that the policy is carried out. Therefore, the Director must ensure that environmental justice, as defined in the Act, "is carried out" when making his determinations about a landfill permit under the Virginia Waste Management Act.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General