Waterkeepers Chesapeake Supports Ensuring Equitable Access to Courts in Virginia

Waterkeepers Chesapeake and Potomac Riverkeeper Network joined an amici curiae brief filed on July 5, 2022 in the Virginia Supreme Court to help ensure court access to challenge zoning decisions that may adversely impact communities of color, low-income communities, and communities already overburdened by pollution. The “friend of the court” brief was filed in Morgan et al. v. Board of Supervisors of Hanover County, in which local residents brought a challenge to local zoning decisions related to the siting of the Wegmans Distribution Center on a 217-acre property located in the historic Brown Grove community in Hanover County. The amici brief was led by the Virginia Environmental Justice Collaborative with the Sierra Club and the Virginia Poverty Law Center.

In the decision appealed to the Virginia Supreme Court, the Circuit Court had found that nearby residents had not sufficiently alleged a “particularized” injury that was different from harms that may be felt by the general public, even though they would be directly impacted by, among other things, increased traffic, noise, and light pollution stemming from the new facility. The Circuit Court also found that certain alleged harms were speculative because they had not yet occurred and may not occur. Based on these findings, the Circuit Court dismissed their claims finding the residents lacked standing to sue, keeping them from pursuing their challenges in court. This case is one of three recent, similar cases where the lower courts have restricted access to the courts on similar grounds. The Virginia Supreme Court has reversed two of these cases — Anders Larsen Trust v. Board of Supervisors, decided May 26, 2022 (210538) and Seymour v. Roanoke County Board of Supervisors, decided June 9, 2022 (210721).

The siting of the facility raises environmental justice concerns, because the Brown Grove community has historically been divided by the construction of I-95 and various industrial and commercial development that has resulted in the displacement and dismemberment of an historic African American community. Such developments have contributed to disproportionate harms often felt by these communities, including increased air pollution and health impacts. The construction also involves destruction of wetlands, raising environmental concerns. The brief provides the Virginia Supreme Court with this context, as it considers whether the lower court was correct in closing the door to the plaintiffs’ challenges.

Environmental justice is defined in the Virginia Environmental Justice Act as “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.” VA. CODE ANN. § 2.2-234 (2022). Access to court is an important avenue to ensure these goals are being met.