It's Time to Tear Down Barriers to Sensible Safeguards, Equity, and Justice in Virginia

David Flores

Nov. 4, 2020

The Virginia General Assembly has wrapped a special legislative session to reform the Commonwealth’s budget. The story Virginians often hear is that lawmakers were busy pursuing social justice, spurred on by COVID-driven economic hardships and a historic demand for reforms. However, this story belies the fact that the Assembly failed to pass the meaningful social justice reforms called for by working-class Virginians, while giving away half a billion dollars in customer overcharges to Dominion Energy’s shareholders.

With the climate and COVID crises at the fore, state and local environmental regulation and decision-making has taken on greater weight. As CPR Policy Analyst Katlyn Schmitt points out in a new paper, there is still some low-hanging fruit to be picked before Virginians can be equitably served by and participate in the Commonwealth’s environmental decision-making process.

For one, public notice and comment procedures for proposed environmental rules and pollution permits are siloed and arcane, exclusively relegated to the back pages of local newspapers in some cases. Meanwhile, the online infrastructure for a more equitable and accessible notice and comment process already exists in Virginia’s Regulatory Town Hall website, which is well-suited for making draft decisions, records, and electronic comment submissions available to anyone who has access to a computer and the Internet. Of course, Internet access is not a panacea for all that ails Virginia’s public participation policy. Many citizens – with and without access to high-speed broadband – have encountered difficulties simply accessing virtual spaces for public hearings during the COVID-19 pandemic.

In addition, Virginia’s low-income families and communities of color face a number of inequitable and arbitrary procedural burdens when it comes to advocating for their health and safety. Here's just one example: My colleague Darya Minovi and I were recently asked to contribute to an effort on behalf of fenceline communities in Portsmouth. As part of that effort, we submitted a comment letter on the Department of Environmental Quality’s draft air pollution permit for a proposed fossil fuel-burning power plant at the U.S. Norfolk Naval Shipyard. Our letter examines the potential risk of harm from climate-driven pollution releases and the burden of toxic air emissions on neighboring communities that are already disproportionately burdened by industrial pollution and climate impacts, among other harms.

Those risks are clearly important, but there's a strange and seemingly arbitrary barrier to addressing them: Virginia requires submission of at least 25 – not 24 or 26 – discrete, technical comments before a draft permit undergoes a public hearing and consideration by the Air Pollution Control Board. Surely the threat to the health and safety of a fenceline community is no more or less significant if residents and others submit 24 or 25 comment letters, or whether the letters are suitably discrete and technical in nature to reach this threshold.

The particular circumstances of this permitting decision cast the inequity and injustice of Virginia’s regulatory policy into sharp relief. According to Centers for Disease Control and Prevention data, the largely Black and low-income communities adjoining the shipyard are among the most socially vulnerable to disaster, disease, and hazardous pollution in Virginia and nationwide, while state data show that community members already endure greater rates of death and disease than the rest of the Commonwealth.

Meanwhile, the Department of Defense is supremely well-resourced – with a budget exceeding the sum of the budgets for the next ten largest militaries – and already emits greenhouse gases like no other, all while spending billions to upgrade its installations and operations and adapt to the rise in sea levels for which it is significantly responsible. All of the risk from pollution and flooding, and none of the benefits, are shunted onto fenceline communities.

Will 25 or more comment letters lead to a just outcome? Probably not, but procedural reforms must be enacted along the way to justice and equity in Virginia. Substantively just outcomes depend on it.

By all accounts, the COVID pandemic and the cascading social and economic harms for Virginians will worsen over the winter months and into the next legislative session. While providing for the immediate needs of vulnerable populations, lawmakers should also address the long-term ramifications of local and statewide environmental decisions made on non-emergency matters amidst a declared emergency – when the public is distracted at best, and unable to participate at worst. Unjust and inequitable outcomes often result from a business-as-usual approach, one that Virginians are increasingly unwilling to stomach.

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