789 S.E.2d 121
Va. Ct. App.2016Background
- In 2009 the Virginia General Assembly authorized DEQ to adopt a "permit by rule" (PBR) for small renewable energy projects and required DEQ to develop the wind-energy PBR by Jan. 1, 2011. DEQ adopted and the Director signed the wind Regulations on Oct. 22, 2010; they were published Nov. 22, 2010 with an effective date Dec. 22, 2010.
- Appellants (Karr, McCall, Webb, White) filed a notice of appeal Dec. 22, 2010 and a petition in circuit court Jan. 21, 2011 challenging the Regulations as unlawful under Code § 10.1-1197.6 and related APA rules.
- DEQ moved to dismiss for lack of jurisdiction, arguing the appeal was untimely under Rule 2A:2(a); the circuit court denied that plea in bar on May 23, 2011. The Court of Appeals affirmed that denial, concluding the appellants filed within the 30-day window measured from publication.
- On the merits the circuit court upheld the Regulations, finding (among other things) that the term “wildlife” was ambiguous and DEQ’s interpretation was entitled to special weight, and that DEQ reasonably defined triggers requiring mitigation plans.
- On appeal the Court of Appeals held that (1) the circuit court erred in calling “wildlife” ambiguous (it is unambiguous and has its ordinary meaning), but (2) that error was harmless because the statutory phrase "where relevant" permits DEQ to identify the subset of wildlife requiring site studies, and (3) DEQ lawfully may set objective triggers (e.g., bats, state-listed T&E species, sea-turtle proximity, CAPZ avian data) for finding "significant adverse impacts" and requiring mitigation. The judgment below was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal (plea in bar) | Appellants filed timely: 30 days after publication (Nov. 22 → Dec. 22). | DEQ/AG: adoption occurs when Director signs, so appeal was untimely. | Appeal timely measured from publication or the 30-day final-adoption period; plea in bar overruled and affirmed. |
| Ambiguity of "wildlife" in Code § 10.1-1197.6 | "Wildlife" ambiguous; defer to DEQ’s interpretation. | DEQ likewise urged its interpretation but relied on agency expertise. | "Wildlife" is unambiguous (ordinary meaning); circuit court erred to call it ambiguous, so agency gets no special deference on that term. Error was harmless. |
| Statutory requirement for site-specific wildlife studies (B(7)) | Statute requires real-time, site-specific surveys of presence, activity, migratory behavior for all wildlife up to 12 months. | DEQ: studies required only "where relevant"—DEQ may identify which species are relevant and tailor studies accordingly. | Held for DEQ: "where relevant" limits the required onsite studies to wildlife DEQ identifies as likely to be impacted; Regulation’s species-specific survey matrix complies with B(7). |
| Predetermination of "significant adverse impacts" (B(8)) | Regulation improperly predetermines which species trigger mitigation, before statutorily mandated data collection. | DEQ: statute empowers it to determine whether data indicate likely significant adverse impacts; Reg. 9 VAC 15-40-50(A) reasonably implements that authority with objective triggers. | Held for DEQ: statute confers authority to determine what constitutes a significant adverse impact; the Regulation’s triggers (bats, state-listed T&E, sea-turtle proximity, CAPZ avian results) are valid. |
Key Cases Cited
- Russell v. Va. Bd. of Agric. & Consumer Servs., 59 Va. App. 86 (discusses when a regulation is "adopted" for appeal timing)
- Bennett v. Commonwealth, 60 Va. App. 656 (statutory interpretation reviewed de novo)
- Nielsen Co. (US), LLC v. Cty. Bd. of Arlington Cty., 289 Va. 79 (courts' role vs. agency interpretation; weight to administrative construction)
- Kavanaugh v. Va. Birth-Related Neurological Injury Comp. Program, 60 Va. App. 440 (regulation must not conflict with authorizing statute)
- Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (interpret statute as a coherent whole in review of regulations)
- Webster Brick Co. v. Department of Taxation, 219 Va. 81 (administrative interpretations not binding when statute unambiguous)
- Davenport v. Little-Bowser, 269 Va. 546 (agency interpretation receives no special weight when statute is clear)