Virginia environmental advocates anticipated challenges to the state’s recent landmark legislation such as the Clean Economy Act and Clean Cars when the General Assembly’s regular session began in January.
What caught them off guard, however, was a measure to transfer substantial regulatory and permitting authority away from two citizen boards and to staffers at the state Department of Environmental Quality.
“We probably could have and should have guessed it was coming,” said Peter Anderson, Virginia policy director with Appalachian Voices. “We certainly didn’t get a heads up.”
The State Air Pollution Control Board and the State Water Control Board are each made up of seven vetted citizens appointed by the governor.
Republican Gov. Glenn Youngkin is likely on the verge of signing Senate Bill 657, which arose after the air board last year denied a permit affiliated with the Mountain Valley natural gas pipeline.
Senators, where Democrats maintain a 21-19 majority, gave the bill resounding support with a 32-8 vote. The 51-47 House of Delegates vote on the bill fell more along party lines in a chamber with a 52-48 GOP majority.
Conservation and clean energy groups were united in their opposition to SB 657.
This is the sixth legislative session Anderson has spent tracking and shaping environmental policy in Richmond. The 41-year-old Charlottesville resident earned a law degree at George Mason University.
In this interview with the Energy News Network, Anderson explains the origin of the two watchdog citizen boards and how this new legislation will affect environmental decision-making in the state. This interview was lightly edited for clarity and length.
Q: First, let’s talk briefly about the history of the State Air Pollution Control Board and the State Water Control Board. Why and when were they created?
A: It was in the early to mid-1990s when the citizen element was injected into both boards. The idea was to have a safeguard in the form of additional citizen oversight to prevent industry capture of environmental regulations.
However, the boards were created by statute in the 1960s or ’70s. That was in response to a federal suite of environmental regulations. Virginia started to have a state version of the U.S. Environmental Protection Agency and that agency was referred to as the board. That professional staff became the Department of Environmental Quality.
What’s confusing about reading Virginia environmental law is that you see early references to the board and don’t know if it’s the citizen board or the agency.
Q: Now, fast forward from the 1990s to 2008. How did legislation that year reshape the air and water citizen boards?
A: It established parameters on public hearings, notices, comments and participation in decision-making on permits. It included the language about a citizen board being able to make a decision on controversial permits where there was enough public interest to have a hearing.
Q: If signed into law, what changes will SB 657 make?
A: The bill repeals the section of the code added in 2008 that allowed the citizen boards to make final decisions on permits with significant public interest. Those were ones with enough interest to generate hearings.
The citizen boards will continue to exist, with seven members on each one. The boards still have the authority to vote yes or no on DEQ regulations, but they no longer have authority over controversial permits.
Q: How quickly will this change occur?
A: If Gov. Glenn Youngkin signs Senate Bill 657, it would be law of land starting July 1.
Q: Is this the first time legislation has been proposed to limit the authority of citizen boards?
A: No, this is not the first time. Over the years, multiple bills have been introduced to take away their permitting authority or dilute them in some way.
Q: Do you have an idea what motivated Sen. Richard Stuart, R-Westmoreland, to introduce SB 657 this session?
A: In his committee comments, Sen. Stuart alluded to the decision about the Lambert gas compressor station, affiliated with the Mountain Valley Pipeline, being part of his motivation.
The air board denied that permit in fall 2021 even though DEQ staff said the compressor station would be in compliance.
This might be getting into the weeds, but the air board agreed with DEQ that Lambert was sited in an environmental justice community. But when DEQ said the compressor station would cause no disproportionate impact on that community, that is where the air board diverged from DEQ staff.
(Editor’s note: The proposed Lambert compressor station in Pittsylvania County, Va., would have pumped hydraulically fractured gas into North Carolina through the 72-mile Southgate extension of the mainline Mountain Valley Pipeline.)
Q: Is there any connection to the January 2020 decision by the Richmond-based 4th U.S. Circuit Court of Appeals to overturn the air board’s decision a year earlier to approve a permit for the Buckingham gas compressor station along the now-canceled Atlantic Coast Pipeline?
A: In that decision, the Fourth Circuit Court treated the air board and the DEQ as one entity, saying Virginia had failed to determine if there was an environmental justice community in Buckingham County.
That had prompted DEQ to put together a regulatory advisory panel. This was agency staff trying to figure out how to comply with the state’s Environmental Justice Act and make decisions about suitability that wouldn’t be rebuffed by the court again.
Those discussions were pending in fall 2021 when the air board made its decision about the Lambert compressor station.
Q: Proponents of SB 657 consistently state that key environmental decisions should be left to DEQ professionals, not citizen boards. What is your perspective?
A: The prevailing narrative this session was that board members had gone rogue and that they are amateurs when they should be professionals.
But that’s not correct. The statute sets out specific qualifications for education and experience that board members have to meet. These folks have to fill out applications and go through a state approval process that includes vetting by the secretary of natural resources and the secretary of the commonwealth.
This is not some Joe Shmoe you meet on the street making a decision that impacts a lot of people about which they have no knowledge.
Q: Have the boards indeed “gone rogue”?
A: Our colleagues at the Chesapeake Bay Foundation researched minutes of both the air and water boards over the last 20 years. Their findings are contrary to the idea that unqualified citizen board members are going rogue.
The air board has denied one permit and it was for the Lambert compressor station. If you have one permit denial in 20 years, you’re probably doing it exactly right. An occasional disagreement probably means it’s a good thing the citizen board is there.
In the last 15 years, the water board had denied one permit. And they did that because the DEQ recommended they deny it.
Q: Proponents of SB 657 also have emphasized that some other states don’t have citizen boards, so why should Virginia?
A: When people don’t like the outcome, they find fault in the process.
We are lucky to have this structure because the boards are insulation against regulatory capture. We shouldn’t be removing that structure to be like other states. Other states should be copying Virginia because we are a leader.
Also, the states that don’t have citizen boards have an appeals process that can be handled through administrative law judges. Virginia doesn’t have that system.
Q: On a related note this session, House Bill 1261, introduced by Del. Robert Bloxom, R-Accomack, also proposed limiting the authority of citizen boards. Did it have a different twist and what happened to that measure?
A: In contrast to SB 657, which was 17 pages long, Bloxom’s bill was introduced as one page. It became a bill on how members of the air and water boards are appointed.
It eventually called for the House and Senate each pick two and the governor three for each board.
The environmental community actually prefers that all seven appointments stay with the governor. There’s some level of sunshine there because the members are vetted. Technically, we have a confirmation process because the General Assembly has to formally confirm the governor’s picks.
If Bloxom’s bill becomes law, we won’t have that level of sunshine. Who confirms House and Senate appointments? Board members are regulators and part of the executive branch. If the legislative branch is writing laws and choosing executors, isn’t there a separation of powers problem?
It’s to be determined on what will happen to that bill. It will be part of the special session when that convenes. There’s potential for a version of the bill to emerge.
Q: You mentioned earlier that grassroots organizations have expressed frustration trying to make their voices heard by the DEQ and citizen boards. Neither SB 657 nor HB 1261 addresses that issue. Can you elaborate on changes that might alter that dynamic?
A: Permit applicants don’t have barriers accessing the regulatory agency because they have an open dialogue that goes on for months. Yet the people who live with those permitted projects in their communities are allowed to submit one written comment and speak to the agency for three minutes, at best. Many times, they don’t even know about the project or the comment period.
I think we could do a lot better by having more dialogue with impacted communities and giving more weight to their input. Sometimes project developers host their own community meetings, but those are designed to achieve buy-in from locals.
What we need is true collaboration between the agency and community members. Direct community engagement is far more valuable than the desktop demographic analysis that DEQ uses when it decides to engage in an environmental justice analysis. That will lead to better outcomes for both the impacted people and the businesses that want to locate in their communities.
To protect themselves, their air, land and water, community members have to become experts, so they’re already starting with a significant imbalance as far as knowledge and power goes.
Q: What else should readers know?
A: What people should care about is that a process that was already imperfect because it was weighted toward the applicant has removed one more layer of public interest protection by cutting the citizen board out of the final decision.
They need to understand that someday a major project could be proposed that could impact your vacation home, the river you paddle on and fish in, or your favorite camping spot.