William Shewmake | Woods Rogers PLC
A company in the formative stages of locating, permitting, and constructing any substantial industrial or commercial project needs to be keenly aware that the legal and regulatory landscape related to environmental justice is changing in Virginia. We anticipate that change will accelerate in the coming year.
The Virginia Department of Environmental Quality (DEQ) commissioned an environmental justice study by SKEO Solutions, Inc. which issued a report in October 2020 (PDF). The report contains numerous recommendations the DEQ is likely to adopt. One of the first is to begin the process of hiring a Director for Environmental Justice, which is underway.In the General Assembly session just ended, the House and Senate approved competing bills to create a permanent environmental justice advisory group that would include representatives from state agencies across the spectrum. This group would establish policies and recommend statutory and regulatory changes to promote the goals of environmental justice. While the Senate and House could not reconcile their respective bills during this past legislative session, new environmental justice legislation is likely to emerge and pass in the General Assembly session next year.
Moreover, the Governor’s current environmental justice advisory group has recently issued a report with recommendations, and Governor Northam ordered that the advisory group remain in place.
What is environmental justice?
While it is unclear what precise definition of environmental justice Virginia will ultimately adopt, the concept of environmental justice generally involves concentrating intensive, disruptive projects in majority-minority and less affluent communities. According to the U.S. Environmental Protection Agency (EPA):
Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.
Historically, major projects, such as heavy industry and substantial infrastructure projects like roadways, have disproportionately burdened poor communities and communities of color with pollution and physical dislocation. The people who live in these communities had little say in the process because of the lack of resources needed to affect the outcome.
Why is there a need for environmental justice?
For years, several factors contributed to the pattern of concentrating intensive uses in historically underrepresented communities.
- Discrimination and implicit bias
- Cheaper land and lower development costs
- Poorer and minority communities represented a path of least resistance. As an experienced zoning attorney can attest, no matter how meritorious the project and appropriate the site selection, obtaining zoning for a large intensive use near an affluent community can be an arduous and uncertain venture.
How can developers respond to environmental justice concerns?
In the wake of Friends of Buckingham v. Virginia State Air Pollution Control Board (January 2020) and the administration and General Assembly’s recent focus on environmental justice issues, developers should assume that simply complying with environmental laws and regulations may be insufficient when addressing environmental justice issues. Failure to proactively address these issues could delay a project.
While we cannot predict the details of environmental justice policies and regulations that will be adopted in the future, companies should consider the following when approaching a potential project:
- Identifying potential nearby environmental justice communities early is a key step.
- Mitigation of a project’s impact on these communities will become more demanding.
- Greater engagement with any potential environmental justice community will be ultimately beneficial.
- The universe of projects that implicates an environmental justice analysis will substantially expand. The analysis will no longer be confined to substantial infrastructure projects and heavy industry, but will likely include larger commercial projects such as distribution and data centers.
Thus, for any larger commercial or industrial project, we strongly recommend you consider performing a demographic study near the outset of the project. The study should determine if communities, including micro-communities, exist in the area of the project that might qualify for environmental justice consideration. The results of that study may influence your site selection when deciding among competing sites as well as how you approach the project as you go forward. Your being in a position to persuasively argue that your project does not impact a community that invokes environmental justice consideration could expedite your permitting process, reduce your development and operational costs, and lessen potential mitigation measures.
If the site you select might involve environmental justice considerations, you should be prepared to explain why alternative sites are not preferable and the steps you are taking to mitigate any negative effects of your project. We predict that DEQ will be requiring a more detailed alternative site analysis and an explanation of what steps the applicant is taking to mitigate impacts on minority and less affluent communities.
You also should adopt a process that demonstrates your forethought and commitment to engaging possibly affected majority-minority and poorer communities. We recognize that this can involve a delicate consideration of how and when to open a dialogue because you want to establish a good faith line of communication while not simply providing fodder to those who will oppose your project no matter the merits and no matter the steps you are willing to take to address very legitimate concerns. A first step is to identify and establish a dialogue with community leaders while recognizing that large projects often require confidentiality in the formative stages. One-on-one conversations with community leaders and community partners often set a better tone than surprising community members in a public hearing at the beginning of the formal permitting process. When you have those meetings, you also need to be able to explain the benefits your project will provide to those most affected.
This type of environmental justice approach also may provide you with some protection from unfair and unfounded accusations of economic injustice. As anyone experienced in the zoning and permitting processes can tell you, many times opponents of a project will not let facts get in the way of an argument. They typically adopt a “kitchen-sink” approach when opposing a project. Because the accusation of racial or economic insensitivity can taint a project, no matter how unfounded the claim may be, you must be prepared for opponents who will try to manufacture any conceivable environmental justice argument.
Preparing for unfounded claims does not downplay the very legitimate environmental justice concerns that exist or the historic pattern of imposing intensive projects disproportionately on poorer and majority-minority communities. However, baseless claims involving environmental justice will become more prevalent, so you need to prepare and not find yourself in a reactionary and defensive posture if they occur.
In conclusion, if any possibility exists that a nearby community may qualify as an environmental justice community, identify that community early in the process. Then develop a strategy of how and when to engage the community and establish an open line of communication while keeping in mind the need for confidentiality during the project’s formative stages because discussing your project publically too early when you do not have answers to important questions can be just as damaging as waiting too long to establish a dialogue. Remember, winning friends near the beginning of the process is easier than converting adversaries later. Taking these steps may pay dividends as the project unfolds.