Local Ordinances
Overview
In Virginia, local leaders like city councils and county boards have the legal authority to and are responsible for protecting the health and safety of their communities. This includes addressing concerns like coal dust. At the same time, there is a legal rule called Dillon's Rule.[1] Virginia's Dillon Rule limits the ability of local governments to directly regulate things that are regulated by the state, for example, air quality. This often forces cities and counties to seek legislative approval from the Virginia General Assembly to address local issues. But, the rule still leaves room for action.
Even under Dillion's Rule, local governments can take actions that are explicitly granted to them as powers or duties in the state's constitution, like policing and taxation. They are permitted to make moves closely connected to their duties, even if those specific measures are not spelled out as powers word for word. These are often called "implied" powers. Local governments can also take actions that are truly necessary to do their job of protecting the public. These are sometimes called "essential" powers. In simple terms, if something is needed to keep people safe and healthy, local leaders may have a strong reason to act.
This means local governments may still have ways to respond to problems like coal dust, especially when it affects public health. They can also work with state leaders and ask for clearer authority when needed. While Dillon's Rule sets limits, it does not stop local governments from taking action. It leaves space for them to step in when it is necessary to protect their communities or secure their general welfare.
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.
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 hard copy 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.
Resources and Materials: See for Yourself and Dig Deeper
Council Gets Air Pollution Control Plan, Daily Press, December 18, 1956
Federal Preemption of Railroad Law, February 10, 2016
Reynolds, Local Government Law, Fifth Edition, Chapter 8, 2001
Reynolds, Local Government Law, Fifth Edition, Chapter 18, 2001
Reynolds, Reynolds, Local Government Law, Fifth Edition, Chapter 23, 2001
'I Hear That Train a Comin': The Local Regulation of Interstate Railroads, April 30, 2021
Letter from Newport News City Manager Alan Archer to Repair Lab Team Member, August 2024
Coal Dust in Southeast Newport News is a Nuisance and There Are Solution (Corrected), Repair Lab, August 2024
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Sources
- ↑ Local Government Autonomy and the Dillon Rule in Virginia, Virginia Places, Undated.
- ↑ Local Ordinances, § 10.1-1321, Code of Virginia, 1994.
- ↑ Local Ordinances, 9VAC5-170-150, Code of Virginia, 2022.
- ↑ Keaton et al., Zoning Ordinance: Definition, Types of Regulations, Pros and Cons, Investopedia, March 9, 2022.
- ↑ How Zoning Laws Can Help Reduce Pollution, Millman Land, January 25, 2021.
- ↑ Abatement or Removal of Nuisances by Localities, § 15.2-900, Code of Virginia, 1997.
- ↑ Abatement or Removal of Nuisances, § 15.2-1115, Code of Virginia, 2017.
- ↑ Coal Dust in Southeast Newport News is a Nuisance and There Are Solution (Corrected), Repair Lab, August 2024.