Blue Ridge Environmental Defense League

The following Op-ed appeared in the April 26, 2015 print edition of The Roanoke Times - Zeller: Why we need a local veto on pipelines

By: Louis A. Zeller, Executive Director, Blue Ridge Environmental Defense League

Re: Roanoke Times Editorial, “Our view: A local veto over pipelines?” April 1, 2015

Local veto over natural gas pipelines? Yes!

Veto power is essential to democratic rule. Indeed, the ancient Romans conceived the veto to protect citizens of the republic from the aristocrats in the Senate. In fact, the word “veto” is Latin for “I forbid!” At the founding of the United States, Alexander Hamilton argued for the veto as a “check upon the legislative body” to guard against the special interests of his day.

What the Blue Ridge Environmental Defense League means by “community veto” over pipelines is the lawful conduct of public bodies to safeguard the health and welfare of the inhabitants within its boundaries. All Virginia counties are so empowered.

The Constitution of the Commonwealth of Virginia declares that, “all power is vested in, and consequently derived from, the people.” The Code of Virginia states “any county may adopt such measures as it deems expedient to secure and promote the health, safety, and general welfare of its inhabitants.” The general police power held by every county in Virginia grants them the authority to enact rules which promote the health, safety, or welfare of its citizens.

Louis Zeller

The Dillon Rule is often cited to halt initiatives at the local level. It provides convenient cover for local officials hoping to pass the buck. However, the Dillon Rule was neither enacted by the legislature nor declared in the state constitution. Decades ago, when it was being reconsidered, a legal expert said, “the Dillon Rule is less a formal state policy than an approach to judicial interpretation.” It is a judicial opinion, one which can be altered.

Besides, the Dillon Rule may present little or no impediment to a board of supervisors seeking to carry out its duties. According to the Virginia Supreme Court, counties have powers that are either expressly granted, fairly implied or essential and indispensable. And the courts have supported counties where the general police power is concerned. In fact, in 1981 the US Advisory Commission on Intergovernmental Relations ranked Virginia eighth in terms of local government authority; only seven states had more local control. So, has the Dillon Rule been strengthened or weakened?

In 1991 Loudon County’s solid waste ordinance was challenged in court. However, the court ruled for the county, affirming that it had the power to require permits and levy fees. Today, Pittsylvania County’s charter requires its board of supervisors to reject companies with violations of health, safety or environmental regulations. The Roanoke County charter grants local government the broad power necessary to protect the safety and health of its residents and to promote the general welfare.

Judge John Forest Dillon, for whom the Dillon Rule is named, held that state control would reduce corruption in local government and the rampant misuse of public funds for private gain in the 19th Century. But in the 21st Century, the balance of power has shifted decidedly in favor of state sanctioned corporations, the power companies being a prime example.

Therefore, it is reasonable for communities which lie along proposed pipeline routes to demand that local officials take action to protect them from the negative impacts. The purpose of environmental impact studies is public disclosure of information and public participation. The Federal Energy Regulatory Commission provides this opportunity. County governments in Virginia are certainly able to provide expertise on the devastating environmental impacts within their borders. Residents must press their leaders to ensure they do.

A pipeline is harmful to the people who live nearby. State regulation is not effective in addressing the concerns of the municipal government charged with the protection of public health and safety. This argument is based on the Equal Protection Clause of the United States Constitution. Further, the misuse of eminent domain to support a private construction project is anathema to its true purpose. The power of eminent domain must not be used to take property for private use. One can drive on an interstate highway. One cannot get gas from an interstate pipeline. Nor will county coffers reap an economic benefit. Professional appraisers say that losses in property value could be from 50% of the land value for a pipeline easement area up to 30% or more of the whole property value.

Finally, to mix up a call for community veto with anti-democratic initiatives such as Massive Resistance is not just comparing apples to oranges; it is comparing apples to hedgehogs. Why? Because standing up for human rights—the right to vote, the right to attend public school, the right to marry—includes standing for clean air, clean water and clean energy.

Louis A. Zeller, Executive Director
Blue Ridge Environmental Defense League
PO Box 88 Glendale Springs, NC 28629
(336) 982-2691