Local Regulations
While there are currently no 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.
Regulating Air Pollution (Coal Dust)
In Virginia, local governments (like the Newport News City Council) 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).
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 Nuisances
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.
Authority
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.
Nuisances and Coal Dust
The Newport News 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).
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.
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
Local jurisdictions may not:
- 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.[1]
State and local government can use their “police powers” to protect public health and safety but state or local actions must not be discriminatory.
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
Council Gets Air Pollution Control Plan. December 18, 1956.
Federal Preemption of Railroad Law. February 10, 2016.
I Hear That Train a Comin’: The Local Regulation of Interstate Railroads. April 30, 2021.
§ 10.1-1321. Local ordinances. 1966.
9VAC5-170-150. Local ordinances.