Here's the latest in a case we've been following (we visited the site last November with our William and Mary class), the property owners' Opening Brief in a case being considered by the Virginia Supreme Court.
This is a case at the intersection of property and takings law, and environmental protection. Several Nansemond River oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under the Virginia Constitution's taking or damaging clause (article I, § 11).
The trial court sustained the City's demurrer, accepting the City's argument that it has the right to pollute the river, based in part on the U.S. Supreme Court's decision in Darling v. City of Newport News, 249 U.S. 540 (1919). The court acknowledged that the oystermen's lease is property, but concluded that the city and sanitation district possess a superior right to pollute the river with sewage. So the oystermen asked the Virginia Supreme Court for discretionary review. Virginia's inverse condemnation doctrine -- set out most recently in Livingston v. VDOT and AGCS Marine Ins. Co. v. Arlington County -- is also a big question.
The brief also asserts a public trust argument:
This brings the argument full circle: Assuming for argument’s sake that this Court’s Darling ruling permitted discharge of pollutants without consequence, the General Assembly overturned the precedent in Franklin Roosevelt’s second term. Eight years later, it declared the discharge of pollutants into waterways to be against public policy. 1946 Va. Acts ch. 63B, §1514-b(4) (State Water Control Law). That public-policy declaration survives today as Code §62.1-44.2.Our laws – the jus publicum and public-trust doctrines; our Constitution and Code – do not authorize the violation of declared public policy in this way. Now, unlike in 1918, localities and authorities have no power to pollute the Commonwealth’s waters and damage its oyster beds with impunity.
Br. at 12. Stay tuned. The court will likely hear argument late this year, and in the meantime, we shall continue to follow along.
Brief of Appellants, Johnson v. City of Suffolk, No. 191563 (Va. June 11, 2020)
