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While there are currently no [[State Regulations|regulations in Virginia]] that specifically address fugitive coal dust, some localities rely on nuisance ordinances to mitigate its impact. These ordinances offer limited but crucial tools for residents and officials trying to hold polluters accountable. However, enforcement is often inconsistent, and the burden of proof typically falls on affected communities.  
== Overview ==
In Virginia, local governments, including city councils and county boards, have the legal authority to protect the health, safety, and welfare of their residents. At the same time, under Virginia's Dillon Rule,<ref>[http://www.virginiaplaces.org/government/dillon.html Local Government Autonomy and the Dillon Rule in Virginia], Virginia Places, Undated.</ref> local governments can only act within the specific powers granted to them by the [[Virginia General Assembly]]. Virginia's Dillon Rule limits the ability of local governments to directly regulate things that are regulated by the state, for example, air quality.  


== Regulating Air Pollution (Coal Dust) ==
One tool available to local governments are ordinances, which are municipal laws governing issues such as zoning, public nuisances, business licensing, and health and safety. Local governments can also hold public hearings and forums to formally document residents' concerns and build public records, advocate to the [[Virginia General Assembly]] and state agencies for oversight and enforcement of existing state and federal regulations, create and distribute funds through local fees, fines, and funds to provide dedicated resources for specific issues. Local governments can often leverage underused powers, work in partnership with nonprofit organizations, and even operate in legal gray areas where risk is minimal but potential impact is significant.   
In Virginia, local governments [[Newport News City Council|(like the Newport News City Council)]] holds statutory authority under Virginia law to enact local '''ordinances''', which are municipal laws governing issues such as zoning, public nuisances, business licensing, and health and safety. They may also may adopt ordinances related to air pollution, but only with prior approval from the Department of Environmental Quality (DEQ) (Va. Code § 10.1-1321). These ordinances must be at least as stringent as existing state regulations, and localities are required to demonstrate they have sufficient resources to enforce the rules, including procedures for monitoring, compliance, and public complaints (9VAC5-170-150).   


The ordinances require the Council to provide public notice and hearing opportunities before adoption, and they apply uniformly within the city’s jurisdiction.  
What can be achieved through local regulation involves a complex interplay between local authority and priorities, state preemption, and community pressure.
 
== Local Ordinances ==
In Virginia, local governments like the [[Newport News City Council]] and [[Norfolk City Council]] hold statutory authority to enact local ordinances. Local governments can also adopt new ordinances related to air quality specifically with prior approval from the [[Virginia Department of Environmental Quality (VA DEQ)]].<ref>[https://law.lis.virginia.gov/vacode/title10.1/chapter13/section10.1-1321/ Local Ordinances], § 10.1-1321, Code of Virginia, 1994.</ref> Such an ordinance must be at least as stringent as the existing state regulations, and localities are required to demonstrate they have sufficient resources to enforce the rules, including procedures for monitoring, compliance, and public complaints.<ref>[https://law.lis.virginia.gov/admincode/title9/agency5/chapter170/section150/ Local Ordinances], 9VAC5-170-150, Code of Virginia, 2022.</ref> The ordinance would city council to provide public notice and hold hearings before adoption, which would apply uniformly across the city's jurisdiction.


=== Zoning ===
=== Zoning ===
The process of zoning consists of dividing a particular region of land into districts or zones, then specifying the types of land uses that are allowed or prohibited for each zone. Zoning rules vary greatly between localities, but their most general, shared purpose is to separate residential property use from commercial property use. Local governments can have highly specific zoning ordinances to influence the nature of a district or neighborhood. For example, by designating several neighboring sections of a city strictly for residential use, residents of that region will experience less traffic and noise pollution in their environment. <ref>Keaton et al., [https://web.archive.org/web/20251129180141/https://www.investopedia.com/terms/z/zoning-ordinance.asp Zoning Ordinance: Definition, Types of Regulations, Pros and Cons], ''Investopedia,'' March 9, 2022. </ref>


=== Public and Private Nuisances ===
Most explicitly, municipalities can use zoning to ban or prohibit specific land uses that are deemed harmful to public health and the environment. Where pollution sources and residences are both allowed, zoning codes may include targeted mitigation efforts such as buffer zones.<ref>[https://web.archive.org/web/20250908001733/https://millmanland.com/industry-news/how-zoning-laws-can-reduce-pollution/ How Zoning Laws Can Help Reduce Pollution], ''Millman Land'', January 25, 2021. </ref>  
Especially in Norfolk, council members and community advocates (e.g. through the [https://coaldustkills.wpcomstaging.com/ Coal Dust Kills] coalition) have specifically pushed for a local ordinance recognizing coal dust as a '''public nuisance''', requiring mitigation measures such as domes or wind fences at terminals.<ref>[https://web.archive.org/web/20250801034120/https://www.vpm.org/news/2024-03-29/federal-air-pollution-standards-hampton-roads-coal-dust Hafner, K. Some question whether stricter federal air pollution standards will make a difference in Norfolk, Newport News. VPM.org. March 29 2024.]</ref> An ordinance could require all uncovered coal storage piles within city limits to implement dust suppression technologies or enclosures, and make these standards legally enforceable. This has been a successful strategy in other places, such as [https://voicesinthedust.org/Anti-Coal_Dust_Activism_Outside_of_Hampton_Roads Richmond, CA] where the city used ordinances and permitting to restrict coal and fugitive coal dust from the local terminal.<ref>needs source, not sure if they used nuisance ordinances or something else</ref>


If a locality fails to enforce its ordinance or weakens it below state standards, DEQ may withdraw its approval and assume enforcement authority (9VAC5-170-150). While local ordinances can take precedence over state rules within the locality, this is only permitted if the DEQ has approved the ordinance and it meets or exceeds state requirements (9VAC5-170-150).
=== Public and Private Nuisance Ordinances ===
Local governments are authorized regulate nuisances and even to require the nuisance source to "abate, raze, or remove" it.<ref>[https://law.lis.virginia.gov/vacode/title15.2/chapter9/section15.2-900/ Abatement or Removal of Nuisances by Localities], § 15.2-900, Code of Virginia, 1997.</ref><ref>[https://law.lis.virginia.gov/vacode/title15.2/chapter11/section15.2-1115/ Abatement or Removal of Nuisances], § 15.2-1115, Code of Virginia, 2017.</ref> There are two types of nuisances, private nuisance and public nuisance.  


In exploring potential legal avenues for addressing the coal dust in Hampton Roads, nuisance law is a promising avenue because other approaches to addressing the coal dust issue are preempted by federal or state law.
:'''Private Nuisance:''' As an example, [[Particulate Matter and Coal Dust|coal dust]] on private property interferes with residents' use and enjoyment of their property. Many residents have reported avoiding enjoying time outside on their porches and keeping their windows closed to keep [[Particulate Matter and Coal Dust|coal dust]] out of their homes.<ref>Repair Lab, [[:File:Wind Fences and Domes Report Repair Lab 2024 (corrected).pdf|Coal Dust in Southeast Newport News is a Nuisance and There Are Solution (Corrected)]], August 2024.</ref>


Authority granted by Title 15.2, Subtitle II, Chapter 9, Article 1 (§ 15.2-900) and by Title 15.2, Subtitle II, Chapter 11, Article 1 (§ 15.2-1115) of the Code of Virginia, the City is authorized to act to regulate nuisances and to compel a responsible party to "abate, raze, or remove" a public nuisance.
:'''Public Nuisance:''' The general public reasonably has a common right to not be constantly subjected to coal dust throughout their daily lives.


By some accounts, the Hampton Roads coal dust situation could be characterized as both a private nuisance and a public nuisance. The presence of coal dust on private property unreasonably interferes with residents’ use and enjoyment of their property (private nuisance), and the general public reasonably has a common right to not be constantly subjected to coal dust throughout one’s daily life (public nuisance).
The [[Repair Lab]] has advocated for the [[Newport News City Council]] to explore options to require [[Coal Terminals in the Port of Virginia|Dominion Terminal Associates]] and [[Coal Terminals in the Port of Virginia|Kinder Morgan Bulk Terminals]] to install a physical barrier to mitigate [[Particulate Matter and Coal Dust|coal dust]] pollution in [[Southeast Newport News]]. This has been a successful strategy in other places such as [[Richmond, California]] and [[Dearborn, Michigan]].
 
=== Railroads ===
Newport News could deem the coal dust a public nuisance via powers expressly granted by the Code of Virginia § 15.2-1115, or for residents to establish a public nuisance through the procedure outlined in Code of Virginia § 48.  
Local governments have very limited power to regulate railroads because of federal preemption. However, they can sometimes modify local impacts of railroads, for example, addressing the noise or zoning around rail infrastructure. Local governments cannot impede rail operations and must work within narrow exceptions, and often need [[State Regulations|state]] or [[Federal Regulations|federal]] approval to take action.
 
== Regulating Railroads ==
Local governments have very limited power to regulate railroads due to federal preemption. However, they can sometimes address local impacts, such as noise or zoning around rail infrastructure, but cannot impede rail operations and must work within narrow exceptions, and often need state or federal approval to take action.


== Limitations on Local Regulations ==
== Limitations on Local Regulations ==
Local jurisdictions may not:  
=== Dillon's Rule ===
 
Virginia operates under the Dillon Rule, which means local governments can only exercise the specific powers granted to them by the [[Virginia General Assembly]]. This often forces cities and counties to seek legislative approval from the [[Virginia General Assembly]] to address local issues.  
* Regulate economic issues  
* Control station closures  
* Apply burdensome or discriminatory regulations  
* Unduly restrict the operations of interstate carriers  
 
Local jurisdictions may:  
 
* Conduct environmental monitoring  
 
* Apply building and zoning codes (but not pre-construction reviews)
 
=== Federal Preemption ===
The Interstate Commerce Commission Termination Act (ICCTA) preempts many state and local regulations. Additionally, the federal government holds primary authority over railroads through agencies like the Federal Railroad Administration (FRA) and the Surface Transportation Board (STB).
 
A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order-- (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce.
 
In other words, as long as the regulation does not effectively foreclose or restrict or unreasonably burden railroad operations, local bodies retain power to protect health and safety with regulations.<ref>[https://voicesinthedust.org/images/b/b8/5-2021-Spring-PPT%3B-Conneran-I-Hear-That-Train-Municipal-Legal-Issues-Railroads.pdf Conneran, M. I Hear That Train a Comin’: The Local Regulation of Interstate Railroads. ''City Attorney Spring Conference.'' April 20, 2021.] </ref>


State and local government can use their “police powers” to protect public health and safety but state or local actions must not be discriminatory.
The City Manager Alan Archer of Newport News has claimed that the City of Newport News can not address [[Particulate Matter and Coal Dust|coal dust]] pollution through an ordinance because air quality is regulated by the [[State Regulations|state]], and any ordinance would require approval from the [[Virginia Air Pollution Control Board|Virginia State Air Pollution Control Board (APCB)]]. In 2024, City Manager Archer passed a hardcopy of such a [[:File:From Alan Archer August 2024.jpg|statement]], without City of Newport News letterhead or the signature of the City Attorney, to a [[Repair Lab]] team member to dissuade their efforts to compel the [[Newport News City Council]] to explore an ordinance solution to the [[Particulate Matter and Coal Dust|coal dust]] pollution.
 
=== State Law: Dillon's Rule ===
Virginia operates under Dillon’s Rule, which means local governments can only exercise powers that the state explicitly grants. This limitation often forces counties and cities to seek special legislative approval from the General Assembly to address local issues, including issues like public health and infrastructure. As a result, enforcement and innovation are frequently slowed.
 
This significantly limits the ability of Hampton Roads localities to create regulations that directly address coal dust pollution.  


== Documents ==
== Documents ==
[[:File:Daily Press 1956 12 18 Page 3.pdf|Council Gets Air Pollution Control Plan. December 18, 1956]].
[[:File:W~Helena Gardner~Federal Preemption of Railroad Law~2-10-2016 (1).pdf|Federal Preemption of Railroad Law. February 10, 2016.]]
[[:File:5-2021-Spring-PPT;-Conneran-I-Hear-That-Train-Municipal-Legal-Issues-Railroads.pdf|I Hear That Train a Comin’: The Local Regulation of Interstate Railroads. April 30, 2021.]]
[[:File:10.1-1321. Local ordinances.pdf|§ 10.1-1321. Local ordinances. 1966.]]
[[:File:9VAC5-170-150. Local ordinances..pdf|9VAC5-170-150. Local ordinances.]]
[[:File:Reynolds localgovtlaw ch8.pdf|Reynolds, O. Local Government Law. Fifth Edition. Chapter 8. 2001.]]
[[:File:Reynolds Local Government Law ch 18.pdf|Reynolds, O. Local Government Law. Fifth Edition. Chapter 18. 2001.]]


[[:File:Reynolds localgovtlaw ch23.pdf|Reynolds, O. Local Government Law. Fifth Edition. Chapter 23. 2001.]]  
* [[:File:Daily Press 1956 12 18 Page 3.pdf|Council Gets Air Pollution Control Plan, December 18, 1956]]
* [[:File:W~Helena Gardner~Federal Preemption of Railroad Law~2-10-2016 (1).pdf|Federal Preemption of Railroad Law, February 10, 2016]]
* [[:File:5-2021-Spring-PPT;-Conneran-I-Hear-That-Train-Municipal-Legal-Issues-Railroads.pdf|'I Hear That Train a Comin': The Local Regulation of Interstate Railroads, April 30, 2021]]
* [[:File:Reynolds localgovtlaw ch8.pdf|Reynolds, Local Government Law, Fifth Edition, Chapter 8, 2001]]
* [[:File:Reynolds Local Government Law ch 18.pdf|Reynolds, Local Government Law. Fifth Edition, Chapter 18, 2001]]
* [[:File:Reynolds localgovtlaw ch23.pdf|Reynolds, Local Government Law, Fifth Edition, Chapter 23, 2001]]
* [[:File:From Alan Archer August 2024.jpg|Letter from Newport News City Manager Alan Archer to Repair Lab Team Member, August 2024]]
* [[:File:Wind Fences and Domes Report Repair Lab 2024 (corrected).pdf|Repair Lab, Coal Dust in Southeast Newport News is a Nuisance and There Are Solution (Corrected), August 2024]]


== References ==
== References ==

Latest revision as of 21:53, 6 February 2026

Overview

In Virginia, local governments, including city councils and county boards, have the legal authority to protect the health, safety, and welfare of their residents. At the same time, under Virginia's Dillon Rule,[1] local governments can only act within the specific powers granted to them by the Virginia General Assembly. Virginia's Dillon Rule limits the ability of local governments to directly regulate things that are regulated by the state, for example, air quality.

One tool available to local governments are ordinances, which are municipal laws governing issues such as zoning, public nuisances, business licensing, and health and safety. Local governments can also hold public hearings and forums to formally document residents' concerns and build public records, advocate to the Virginia General Assembly and state agencies for oversight and enforcement of existing state and federal regulations, create and distribute funds through local fees, fines, and funds to provide dedicated resources for specific issues. Local governments can often leverage underused powers, work in partnership with nonprofit organizations, and even operate in legal gray areas where risk is minimal but potential impact is significant.

What can be achieved through local regulation involves a complex interplay between local authority and priorities, state preemption, and community pressure.

Local Ordinances

In Virginia, local governments like the Newport News City Council and Norfolk City Council hold statutory authority to enact local ordinances. Local governments can also adopt new ordinances related to air quality specifically with prior approval from the Virginia Department of Environmental Quality (VA DEQ).[2] Such an ordinance must be at least as stringent as the existing state regulations, and localities are required to demonstrate they have sufficient resources to enforce the rules, including procedures for monitoring, compliance, and public complaints.[3] The ordinance would city council to provide public notice and hold hearings before adoption, which would apply uniformly across the city's jurisdiction.

Zoning

The process of zoning consists of dividing a particular region of land into districts or zones, then specifying the types of land uses that are allowed or prohibited for each zone. Zoning rules vary greatly between localities, but their most general, shared purpose is to separate residential property use from commercial property use. Local governments can have highly specific zoning ordinances to influence the nature of a district or neighborhood. For example, by designating several neighboring sections of a city strictly for residential use, residents of that region will experience less traffic and noise pollution in their environment. [4]

Most explicitly, municipalities can use zoning to ban or prohibit specific land uses that are deemed harmful to public health and the environment. Where pollution sources and residences are both allowed, zoning codes may include targeted mitigation efforts such as buffer zones.[5]

Public and Private Nuisance Ordinances

Local governments are authorized regulate nuisances and even to require the nuisance source to "abate, raze, or remove" it.[6][7] There are two types of nuisances, private nuisance and public nuisance.

Private Nuisance: As an example, coal dust on private property interferes with residents' use and enjoyment of their property. Many residents have reported avoiding enjoying time outside on their porches and keeping their windows closed to keep coal dust out of their homes.[8]
Public Nuisance: The general public reasonably has a common right to not be constantly subjected to coal dust throughout their daily lives.

The Repair Lab has advocated for the Newport News City Council to explore options to require Dominion Terminal Associates and Kinder Morgan Bulk Terminals to install a physical barrier to mitigate coal dust pollution in Southeast Newport News. This has been a successful strategy in other places such as Richmond, California and Dearborn, Michigan.

Railroads

Local governments have very limited power to regulate railroads because of federal preemption. However, they can sometimes modify local impacts of railroads, for example, addressing the noise or zoning around rail infrastructure. Local governments cannot impede rail operations and must work within narrow exceptions, and often need state or federal approval to take action.

Limitations on Local Regulations

Dillon's Rule

Virginia operates under the Dillon Rule, which means local governments can only exercise the specific powers granted to them by the Virginia General Assembly. This often forces cities and counties to seek legislative approval from the Virginia General Assembly to address local issues.

The City Manager Alan Archer of Newport News has claimed that the City of Newport News can not address coal dust pollution through an ordinance because air quality is regulated by the state, and any ordinance would require approval from the Virginia State Air Pollution Control Board (APCB). In 2024, City Manager Archer passed a hardcopy of such a statement, without City of Newport News letterhead or the signature of the City Attorney, to a Repair Lab team member to dissuade their efforts to compel the Newport News City Council to explore an ordinance solution to the coal dust pollution.

Documents

References

  1. ↑ Local Government Autonomy and the Dillon Rule in Virginia, Virginia Places, Undated.
  2. ↑ Local Ordinances, § 10.1-1321, Code of Virginia, 1994.
  3. ↑ Local Ordinances, 9VAC5-170-150, Code of Virginia, 2022.
  4. ↑ Keaton et al., Zoning Ordinance: Definition, Types of Regulations, Pros and Cons, Investopedia, March 9, 2022.
  5. ↑ How Zoning Laws Can Help Reduce Pollution, Millman Land, January 25, 2021.
  6. ↑ Abatement or Removal of Nuisances by Localities, § 15.2-900, Code of Virginia, 1997.
  7. ↑ Abatement or Removal of Nuisances, § 15.2-1115, Code of Virginia, 2017.
  8. ↑ Repair Lab, Coal Dust in Southeast Newport News is a Nuisance and There Are Solution (Corrected), August 2024.
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