New opinion from Attorney General Herring establishes environmental justice policy

RICHMOND (December 9, 2021) – In an important environmental-related official opinion issued at the request of Senator Ghazala Hashmi, Attorney General Mark R. Herring clearly establishes Virginia’s environmental justice policy and concludes that state agencies, specifically the Department of Environmental Quality, must consider the Environmental Justice Act (EJA) during the permitting process for any kind of construction, program, or policy. The opinion will help ensure that environmental justice, as outlined in the Act, “is carried out” across the Commonwealth for any new project.

“The environmental justice impacts and consequences should be considered with any kind of project or construction that happens within the Commonwealth, and it’s on the respective state agencies to ensure that happens,” said Attorney General Herring. “Too often, projects that had a negative environmental impact have disproportionately affected communities of Black and Brown Virginians, many times to the detriment of the individuals’ health who lived there. Ensuring environmental justice in every corner of Virginia is just another way we will be able to pursue our goal of making the Commonwealth more open and welcoming to all.”

“I thank the Attorney General for rendering his opinion that the Environmental Justice Act not only establishes environmental justice as a policy of the Commonwealth but that it also imposes a responsibility on our agencies to include these concerns within all permitting decisions,” said Senator Hashmi. “Most particularly, the Director of the Department of Environmental Quality must evaluate permitting decisions through the lens of environmental justice and evaluate the impacts on our fenceline communities. The AG’s opinion validates the years of effort by so many individuals and organizations that have shone a consistent spotlight on the environmental injustices of the past.”

Through legislation carried by Delegate Mark Keam and Senator Hashmi, the Environmental Justice Act was passed during the 2020 General Assembly Session and “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.’” The EJA was recently cited by the State Air Pollution Control Board in its decision to deny the permit for the Lambert Compressor Station.

As Attorney General Herring notes in his opinion, “[u]nder 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 or any environmental law, regulation or policy.’” He further explains that “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.’”

Attorney General Herring concludes the opinion by saying, “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 [of the Department of Environmental Equality] must ensure that environmental justice, as defined in the Act, ‘is carried out’ when making his determinations . . .”