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Insurance Recoveryfor EnvironmentalTorts in Virginia:The “Sudden &Accidental”Pollution ExclusionRemains Unclearby David D. Jensen

Introduction

Facing large liabilities for pastenvironmental pollution, manycompanies and individuals

seek recovery of their expensesunder commercial general liability(CGL) insurance policies. Citingpolicy exclusions, CGL insurersoften respond by denying coveragealtogether, by providing full or par-tial remuneration of defense costs,or by negotiating compromise settle-ments. While these disputes ofteninvolve large sums of money, thereis a pointed lack of case law to guideparties (and courts) in these dis-putes.

This article addresses a much-litigated issue in insurance cover-age for environmental liabilities:the interpretation of pollutionexclusions containing exceptionsfor “sudden and accidental” pollut-ing events (hereafter, “sudden andaccidental exclusions”). The criti-

cal issue in interpretation of theseexclusions is whether or not thephrase “sudden and accidental”incorporates a temporal element. If“sudden and accidental” does notnecessarily mean “abrupt,” thenthe exclusion will protect a muchbroader spectrum of pollutingevents. This article begins with adiscussion of the sudden and acci-dental exclusion, and then movesto a discussion of Virginia’s persua-sive authorities interpreting theclause. After reviewing variousaspects of insurance coverage lawin Virginia, the article analyzes theexclusion and concludes thatVirginia courts will likely find thatit incorporates a temporal element.Thus, liability policies incorporat-ing sudden and accidental exclu-

sions provide no indemnificationfor gradual and/or prolonged pol-luting events.

The Sudden & Accidental Exclusion

In 1973, insurers began using anexclusion in CGL policies thatdenied coverage to damages “aris-ing out of the discharge, dispersal,release or escape” of various pollu-tants.1 The exclusion contained anexception, however, and coverageapplied when the “discharge, dis-persal, release or escape [was] sud-den and accidental.”2 Becausepolicies typically provided no defi-nition for the term “sudden and

Chair’s Corner

On behalf of the Board of Governors, I have the privilege ofannouncing three excellent CLE opportunities for our membersover the next two months. Our “2002 Virginia Environmental

Regulatory Update” is being offered on May 7 in a teleconference for-mat. Our five speakers from the Department of Environmental Qualitywill address current developments in their respective program areas:

• Brownfields/Special Programs (Harry Gregori)• Waste (Karen Sismour)• Air (John Daniel)• Water (Larry Lawson)• Wetlands (Ellen Gilinsky).

Please mark your calendars now for this convenient two-hour tele-conference. The live program will be held at 10:00 a.m. on May 7, anda replay will be available on May 23 at the same time. Registrationinformation is being mailed directly to Section members, but you canregister now by visiting the Virginia CLE website, www.vacle.org, or bycalling (800) 979-8253.

continued on page 2

David Jensen is a candidate for juris doctorin the class of 2003 at Washington and LeeUniversity School of Law in Lexington, VA.

Published by the Environmental Law Section of the Virginia State Bar for its members

Environmental Law NewsVolume XIV, No. 1 Spring 2002

continued on page 3

Environmental Law News

Environmental Law NewsVolume XIV, No. 1

Spring 2002

Prepared by the staff ofEnvironmental Law Digest

Washington and Lee UniversitySchool of Law

Lexington, Virginia 24450

Editor-in-ChiefMaynard Sipe

Associate EditorRobert Test

Managing EditorJason Harrington

Articles EditorDavid Jensen

Case Review EditorJohn Piazza

Legislative EditorAnna Livingston

StaffMichael Adamson

Timothy BalloLesley BeamRyan Berry

Lester BrockMeitra FarhadiDuane GibsonAngela HeplerAngela JonesRyan Leonard

Sarah McGeorgeCasey Ratchford

Robert ScottLeslie Skiba

Susannah TripiAbigail WalshWilliam WestEric Whitaker

Faculty AdvisorProfessor Denis J. Brion

All statements, expressions, opinionsor comments appearing herein arethose of the by-lined authors or the

editors and are not necessarily those of the State Bar or the

Environmental Law Section.

On June 14, the Section will pres-ent two CLE workshops at the StateBar’s annual meeting in VirginiaBeach. At the 8:30 a.m. workshop,we are very fortunate to have with usSenator Bill Bolling, chairman of theCommission on the Future of Vir-ginia’s Environment, and Tayloe Mur-phy, Governor Warner’s Secretary ofNatural Resources, to discuss “Envi-ronmental Directions in Virginia in2002 and Beyond.” This program,which is co-sponsored by the Admin-istrative Law Section, will alsoinclude an engaging, entertainingsegment by former Senior AssistantAttorney General John Butcher onjudicial review of agency action.

At our 10:45 a.m. workshop enti-tled “Toxic Mold Exposure Claims,”Stephen Busch of McGuireWoodsLLP will address liability and litiga-tion issues, and Matthew Jacobs ofKirkpatrick & Lockhart will speak toinsurance coverage issues. This pro-gram will be presented jointly withthe Construction Law and LocalGovernment Law Sections.

I would like to thank the Section’svice chair, Stewart Leeth, for theconsiderable time and effort he hasdevoted to developing and arrangingthese programs for our Section. Ihope you will find them informativeand beneficial to your practice.

Lastly, at our recent meeting, theBoard of Governors established theVirginia State Bar EnvironmentalLaw Award. This recognition of thestudent author who contributes thebest article to the EnvironmentalLaw News each year is intended topromote scholarship and articles ofexceptional quality. In addition torecognition by the Bar, the awardwill include a $250 prize. The firstaward will be made at the close ofthis academic year.

Christopher D. Pomeroy

ArticlesThe articles in this section are

intended to provide analysis and dis-cussion of topics that may interestattorneys who practice in areas ofenvironmental law. The Environmen-tal Law Digest welcomes submissionsof appropriate articles. Suggestions oftopics for articles and other com-ments are also welcomed. Please sendany submissions or comments to theEnvironmental Law Digest at:

Environmental Law DigestWashington and Lee University

School of LawLexington, Virginia 24450

or by e-mail at:[email protected]

Table of ContentsInsurance Recovery for Environmental Torts in Virginia: The“Sudden & Accidental”Pollution ExclusionRemains Unclear . . . . . . 1

by David D. Jensen

LEGISLATIVE ALERT:Congress Enacts Important Superfund Reform . . . . . . . 4

by Ellen F. Brown

Case Digest . . . . . . . . . . . . 8

Chair’s Cornercontinued from page 1 About This Issue

With this issue of theEnvironmental Law News, webegin Volume XIV. Issues fromthe previous two years wereassigned incorrect volume num-bers. Please note that as a result,there are two Volumes X and XI.We regret any inconvenience thismay cause.

Also with this issue, we pres-ent a new logo. The logo is adepiction of Pinus virginiana,the Virginia pine. It ranges acrossall of Virginia.


accidental,” the precise meaning ofthe exclusion generates a great dealof litigation in American courts.3

Two general interpretations haveemerged across the country. Thefirst interpretation reasons that“sudden and accidental” is ambigu-ous and, thus, it must be construedin favor of the insured. In thesejurisdictions, “sudden and acciden-tal” generally means “unexpectedand unintended” and does notincorporate a temporal element.4

The second interpretation holds“sudden and accidental” unam-biguous and provides coverage onlyfor pollution releases that areabrupt in nature, unexpected, andunintended.5

The choice between the twocompeting constructions is partiallya matter of policy. Construing “sud-den and accidental” to provide cov-erage to “unexpected andunintended” polluting events mayincrease the availability of funds toremedy environmental damage.6 Onthe other hand, the availability ofinsurance recoveries to offset envi-ronmental costs may discourageenvironmentally-responsible behav-ior.7 Excluding coverage for environ-mental liabilities “strengthen[s]…environmental protection standardsby imposing the full risk ofloss…upon the commercial orindustrial enterprise that does thepolluting.”8

Virginia Authorities on the “Sudden andAccidental” Exclusion

A thorough review of Virginiaprecedents reveals only one caseconcerning the “sudden and acci-dental” exclusion decided by aVirginia state court.9 The CircuitCourt for the City of Richmondfound that a complaint alleging “agradual process where [pollu-tants]…are permitted to flow

downstream onto the property ofthe plaintiff” did not allege “anysudden and accidental discharge,dispersal, release or escape.”10

Concluding that “this is not a sud-den and accidental situation,” thecourt ruled that the insurer had noduty to defend its insured.11

Unfortunately, the court did littleto shed light on the correct con-struction of the “sudden and acci-dental” exclusion, save the subsilencio reasoning that gradualreleases of contaminants are not“sudden.”

Recently, the United StatesDistrict Court for the EasternDistrict of Virginia interpretedVirginia law to provide that “suddenand accidental…means both unex-pected and unintended and quickor abrupt.”12 The court’s reasoningapparently rested on two bases.First, Virginia law mandates con-struction of an insurance policy “asa whole,” so that “no wordis…treated as meaningless.”13

Construing “sudden and acciden-tal” to mean “unexpected and unin-tended” would make the word“sudden” meaningless, as “it isuncontroversial that accidentalmeans occurring unexpectedly andunintentionally.”14 Second, thecourt noted that interpretation witha temporal element was the rule“adopted by the majority of juris-dictions.”15 Readers are advised thata number of courts claim to followthe “majority rule” when adoptingcompeting constructions of the sud-den and accidental exclusion.16

Interpretation of InsuranceContracts in Virginia

Virginia law provides thatambiguous language in insurancecontracts must be interpreted infavor of the insured.17 An ambigu-ous provision is one that admits ofmore than one meaning.18 However,language is ambiguous only if vary-ing meanings are “equally possi-ble”; that is, if reasonable persons

can reach reasonable, contradicto-ry conclusions regarding the lan-guage’s meaning.19 In the past, theexistence of a “reasonable differ-ence of opinion” as to a term’smeaning has been a sufficient basisfor a finding of ambiguity.20

An insurance term, undefinedby its policy, carries its plain, ordi-nary, accepted, and/or customarymeaning.21 Frequently, Virginiacourts resort to dictionaries for def-initions of undefined insuranceterms.22 Additionally, each termshould be “considered and con-strued together and seemingly con-flicting provisions harmonizedwhen that can be reasonablydone.”23 In the absence of proof tothe contrary, Virginia presumesthat words in an insurance contractare not used aimlessly.24 That is, thecourts will not adopt an interpreta-tion that renders words or phrases“redundant and meaningless”25 if a“reasonable meaning consistentwith the other parts of the contractcan be given to [them].”26

Construction of the Phrase“Sudden and Accidental”

Virginia has not yet decided themeaning of the term “sudden” inthe insurance context. However, theVirginia Supreme Court has adopt-ed the following definition for “acci-dental”: “Happening by chance, orunexpectedly; taking place notaccording to the usual course ofthings; fortuitous.”27 Other Virginiaprecedents define “accidental” asbeing both “unexpected” and “unin-tended.”28 Significantly, at least twoVirginia courts turned to dictionar-ies to arrive at the foregoing defini-tions.29

Since undefined terms in aninsurance policy carry their plainand ordinary meanings,30 the word“sudden,” on its own, can describeevents that are unexpected, abrupt,or both unexpected and abrupt.31

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Insurance Recoverycontinued from page 1

LEGISLATIVE ALERT:

Congress Enacts ImportantSuperfund ReformBy Ellen F. Brown

On December 21, 2001, Congress passed long-awaited revisions tothe Comprehensive Environmental Response, Compensation,and Liability Act of 1980 (“CERCLA” or “Superfund”) through

the Small Business Liability Relief and Brownfields Revitalization Act,HR 2869. President Bush signed the bill into law on January 11, 2002and it became Public Law No. 107-118.

The new law addresses liability relief for certain small businesses,low-volume parties, prospective purchasers, and contiguous propertyowners. In an effort to encourage brownfields redevelopment,Congress also established new grant programs and limited EPA’s CER-CLA enforcement authority over sites cleaned up in compliance witha state brownfields program.

Although relatively modest in terms of overall Superfund reform,the bill should have immediate impacts on the way we advise ourclients on environmental transactions. In particular, sales negotiationswill almost certainly take on a new flavor as both buyers and sellersattempt to take advantage of the new liability protections and theenforcement bar.

The text and legislative history of the law can be found on the inter-net at http://thomas.loc.gov.

Ellen Brown is an attorney with Dominion Resources Services in Richmond.


bility that Virginia courts will notconsider the effect of “accidental”on the meaning of “sudden” seemsslim in light of Virginia’s establishedcannon of giving force and effect toall terms of an insurance policy.37

Only three states have consideredthe interplay between “sudden” and“accidental” and not found that thephrase incorporates a temporal ele-ment: Illinois,38 Oregon,39 andWashington.40

Oregon and Washington bothdealt with the surplusage argumentby construing “accidental” tomean (just) “unintended” and“sudden” to mean (just) “unex-pected.” The courts then went onto note that the terms were notsynonymous.41 Of course, givenVirginia’s definitions of “acciden-tal” — encompassing both unin-tended and unexpected elements42

— it would be novel for Virginia toadopt the Washington and Oregoncourts’ reasoning that accidentalmeans only unintended. Thus, itseems unlikely that the reasoningemployed by the Washington andOregon courts would come intoplay in Virginia.

Illinois found “sudden and acci-dental” ambiguous in spite of argu-ments that “accidental” wouldbecome surplusage.43 Noting thatthe insuring agreements of the sub-ject CGL policies defined “occur-rence” to include “repeated orcontinuous exposure to condi-tions,” the Illinois court found thatconstruing “sudden” as “abrupt”would “create[] a contradictionbetween [the pollution exclusion]and the policy as a whole.”44 Thisreasoning is suspect, however,because it confuses the time ofrelease with the time of damage.45 Arelease can be abrupt, unexpected,and unintended, and still causedamage over a prolonged period oftime. Given the logical infirmity ofIllinois’s reasoning in this regard, italso appears unlikely that this rea-

On its face, then, “sudden” isambiguous with respect to tempo-rality, as it is susceptible of morethan one reasonable construction.“Sudden” can mean that an event isunexpected (“without warning”) orthat it occurs in a temporally-limit-ed manner (“hasty” or “abrupt”).32

However, it appears likely thatVirginia will find that “sudden andaccidental” unambiguously incor-porates a temporal element. Asnoted, Virginia stipulates construc-tion of insurance contracts to avoidrendering terms “redundant and

meaningless.”33 Concluding that“sudden” means only events thatoccur without notice or warningwould vitiate the significance of theterm “accidental.” Virginia’s priordecisions clearly indicate that“accidental” means both unexpect-ed and unintended,34 so a definitionof “sudden” that duplicates thismeaning would render the termsuperfluous.35

Of course, many courts findingambiguity in “sudden and acciden-tal” do not address concerns thatsuch a finding may render the term“accidental” a nullity.36 The possi-

continued from page 3


soning would be persuasive inVirginia.

There remains the possibilitythat the Virginia courts would findthe sudden and accidental exclu-sion ambiguous on equitable orpublic policy grounds.46 Virginia lawstipulates that unambiguous provi-sions in insurance policies be giventheir “plain and ordinary” mean-ings and enforced as written.47

Though the courts will re-construeinsurance policies to avoid conflictswith statutory law, Virginia refusesto construe unambiguous insur-ance policy provisions on othergrounds.48 Significantly, Virginiadoes not subscribe to the “reason-able expectations” doctrine,49 andenforces the language of insuranceagreements “as written.”50 Thus, itappears unlikely that Virginiawould refuse to impose a temporalelement on the sudden and acci-dental exclusion on grounds otherthan ambiguity.

Though Virginia’s constructionof the sudden and accidental exclu-sion remains unknown, two factorssuggest that the Commonwealthwill follow the Eastern District’s leadand find the clause unambiguous.The first of these is Virginia’s adher-ence to the cannon of interpretationstipulating force and effect to allterms. The second of these is Vir-ginia’s previous construction of“accidental” to include both unex-pected and unintended events.Given the Commonwealth’s reluc-tance to overrule the terms of writ-ten agreements, these two factorsmake it likely that the sudden andaccidental exclusion will ultimatelybe found to include a temporal ele-ment.

The Duty to Defend

Regardless of how Virginia courtsultimately construe the sudden andaccidental exclusion, insurers willlikely still owe policyholders a dutyto defend suits for environmental

cleanup costs. The duty to defend —a liability insurer’s obligation todefend its insured against a suit forcovered damages51 — arises whenev-er a policyholder is sued under alle-gations that, if proven, would becovered under the policy.52 An insur-er must provide its policyholder witha defense if the complaint allegesclaims that would, at least in part, besubject to coverage.53 Conversely,the duty to indemnify — the duty topay damages for which the insured isliable — becomes fixed only at thetime that judgment is enteredagainst the insured. Until that time,an insurer can contest claims madeagainst the insured.54 The duty todefend can impose duties on insur-ers in situations in which the claimsultimately proven are not subject tocoverage. Thus, an insurer may owea duty of defense in situations whereit owes no duty to indemnify.55

The Eastern District found thatallegations of “spilled and released”pollutants triggered a duty to defendon the part of the insurer. The alle-gations “describe[d] a broad contin-uum of pollution events that includeabrupt or quick, unintentional spillsor discharges.”56 Because some of theallegations, if proved, would be sub-ject to coverage, the duty to defendrequired defense of the entire suit.57

When allegations “leave in doubt”whether or not claims are subject tocoverage, an insurer that denies cov-erage risks subsequent breach of con-tract claims if factual developmentreveals that the claims are subject tocoverage.58 Just the same, if coverageis “in doubt” and the insurer electsnot to provide a defense, the insurerhas no liability for defense costs if,ultimately, facts develop such thatthe claim is not subject to coverageunder the policy.59 Many environ-mental cleanup suits will allegeevents that are (in some ways)abrupt, unexpected, and unintended,and thus entitled to coverage. Evenassuming the courts interpret thesudden and accidental exclusion in

the manner predicted by this article,it appears that Virginia’s insurersmay still owe their policyholders aduty to defend suits for cleanup costsin a number of instances.

Conclusion

Though Virginia has not adoptedan authoritative construction of thesudden and accidental exclusion, the(persuasive) authorities that do existindicate inclusion of a temporal ele-ment in the clause. Additionally,Virginia insurance law appears topoint towards inclusion of a tempo-ral element in the clause, as well.Though this will place greater envi-ronmental cleanup burdens on pol-luters themselves, policyholdersforced to pay the costs of environ-mental cleanup may have someinsurance recovery available to themin the form of defense cost coverage.

1 Insurance Services Office form GL 00 02,Ed. 01-73. See also Nancer Ballard & PeterM. Manus, Clearing Muddy Waters: Anato-my of the Comprehensive General LiabilityPollution Exclusion, 75 CORNELL L. REV. 610,613 (1990) (quoting policy language);Sharon M. Murphy, Note, The “Sudden andAccidental” Exception to the Pollution Exclu-sion Clause in Comprehensive General Lia-bility Insurance Policies: The Gordian Knotof Environmental Liability, 45 VAND. L. REV.161, 167 (1992) (quoting policy language).

2 Insurance Services Office form GL 00 02,Ed. 01-73.

3 LEE R. RUSS & THOMAS F. SEGALLA, COUCH ON

INSURANCE § 127:8 (3d ed. 2000) (noting that“[t]he precise meaning of this clausebecame the subject of much litigation”);JOHN ALAN APPLEMAN & JEAN APPLEMAN,APPLEMAN ON INSURANCE LAW & PRACTICE §4524.10 (1997) (stating that the sudden andaccidental exception “is easily the mostoften litigated part of the standard pollutionexclusion”).

4 See RUSS & SEGALLA, supra note 3, § 127:6,§ 127:9; APPLEMAN & APPLEMAN, supra note3, § 4524.10. See also Claussen v. AetnaCas. & Sur. Co., 380 S.E.2d 686, 259 Ga.333 (1989) (holding that “sudden has morethan one reasonable meaning” so it must be


construed as “unexpected”); Ala. PlatingCo. v. U.S. Fid. & Guar. Co., 690 So. 2d331, 335 (Ala. 1996) (reasoning that “sud-den” can mean event that is “unexpected”or event that is occurs “quickly or abruptly”).

5 See APPLEMAN & APPLEMAN, supra note 3, §7A-4524.10. See also Dimmitt Chevrolet,Inc. v. S.E. Fid. Ins. Corp., 636 So. 2d 700,706 (Fla. 1993) (holding that “‘sudden’means happening quickly, abruptly, or with-out prior notice”); Waste Mgmt. of Carolinas,Inc. v. Peerless Ins. Co., 340 S.E.2d 374,382, 315 N.C. 688 (1986) (holding that“sudden” event must occur “instantaneous-ly or precipitantly”); Am. Motorists Ins. Co. v.ARTRA Group, Inc., 659 A.2d 1295, 1308,338 Md. 560 (1995) (“gradual pollution” not“sudden and accidental”); RUSS & SEGALLA,supra note 3, § 127:9 (noting that somecourts find ambiguity in “sudden,” butmajority rule incorporates a temporal ele-ment).

6 See ERIC MILLS HOLMES, HOLMES’ APPLEMAN

ON INSURANCE § 9.6 (2d ed. 1996) (Due to alack of cleanup funds, ”courts have oftentaken a liberal view of coverage consistentwith the aim of finding funds to perform nec-essary environmental remediation work.”).

7 RUSS & SEGALLA, supra note 3, § 127:6.8 Autotronic Sys., Inc. v. Aetna Life & Cas.,456 N.Y.S.2d 504, 505-06, 89 A.D.2d 401(1982) (construing purpose of statutorily-required pollution exclusion).

9 Guyton v. U.S. Fid. & Guar. Co., No. LD 986,1981 WL 180513 (Va. Cir. Ct. 1981).

10 Id. at *1.11 See id. at *2.12 Morrow Corp. v. Harleysville Mut. Ins. Co.,

101 F. Supp. 2d 422, 431 (E.D. Va. 2000).13 See id. (citing Am. Health Ins. Corp. v.

Newcomb, 91 S.E.2d 447, 451, 197 Va.836 (1956)).

14 See id. (quoting WEBSTER’S II NEW RIVERSIDE

UNIVERSITY DICTIONARY 71 (1984)).15 Id.16 See, e.g., Claussen v. Aetna Cas. & Sur.

Co., 380 S.E.2d 686, 688, 259 Ga. 333(1989) (holding that “[t]he majority of courtsconsidering the issue have adopted” theposition that “sudden” means “unexpect-ed”); Ala. Plating Co. v. U.S. Fid & Guar. Co.,690 So. 2d 331, 334 (Ala. 1996) (“A narrowmajority of state supreme courts…have heldthat the sudden and accidental exception isambiguous and must…provide coverage

where migration of contaminants into thesoil or groundwater was ‘unexpected andunintended.’”). Contra Am. Motorists Ins.Co. v. ARTRA Group, Inc., 659 A.2d 1295,1311, 338 Md. 560 (1995) (noting that “themajority of other jurisdictions [hold]that…various, continuing polluting activities,occurring over a long period of time and inthe course of business operations, do notgive rise to a potentiality of coverage underthe sudden and accidental language of thepollution exclusion”).

17 See Cuna Mut. Ins. Soc. v. Norman, 375S.E.2d 724, 275, 237 Va. 33 (1989); St.Paul Fire & Marine Ins. Co. v. S.L. Nusbaum& Co., 316 S.E.2d 734, 736, 227 Va. 407(1984) (holding that language excluding cov-erage to certain events is construed “moststrongly against the insurer”).

18 See Berry v. Klinger, 300 S.E.2d 792, 796,225 Va. 201 (1983) (holding that ambiguity is“the condition of admitting of two or moremeanings, of being understood in more thanone way, or of referring to two or morethings at the same time” (quoting WEBSTER’STHIRD INT’L DICTIONARY 66 (3d ed. 1976))).

19 See S.L. Nusbaum, 316 S.E.2d at 736;Transit Cas. Co. v. Hartman’s, Inc., 239S.E.2d 894, 896, 218 Va. 703 (1978) (hold-ing that although “ambiguity must beresolved against the insurer, the construc-tion adopted must be reasonable, andabsurd results are to be avoided”).

20 See Caldwell v. Transp. Ins. Co., 364 S.E.2d1, 3, 234 Va. 639 (1988).

21 See Transcontinental Ins. Co. v. RBMW,Inc., 551 S.E.2d 313, 318, 262 Va. 502(2001) (undefined term in insurance policygiven its “ordinary and accepted meaning”(quoting Scottsdale Ins. Co. v. Glick, 397S.E.2d 105, 108, 240 Va. 283 (1990)));P’ship Umbrella, Inc. v. Fed. Ins. Co. , 530S.E.2d 154, 160, 260 Va. 123 (2000) (hold-ing that courts give insurance contract lan-guage “its plain and ordinary meaning”);Craig v. Dye, 526 S.E.2d 9, 11, 259 Va. 533(2000) (terms in insurance contracts giventheir “ordinary and customary meaning”(quoting Hill v. State Farm Mut. Auto. Ins.Co., 375 S.E.2d 727, 729, 237 Va. 148(1989))).

22 See, e.g., RBMW, 551 S.E.2d at 319 (rely-ing on WEBSTER’S for meaning of “wave”);Craig, 526 S.E.2d at 12 (relying onWEBSTER’S for meaning of “refuse”); StateFarm Fire & Cas. Co. v. Walton, 423 S.E.2d

188, 192, 244 Va. 498 (1992) (relying onWEBSTER’S for meaning of “occurrence”).

23 RBMW, 551 S.E.2d at 318 (quoting Sluggsv. The Life Ins. Co. of Va., 147 S.E.2d 707,710, 207 Va. 7 (1966))).

24 See Am. Health Ins. Corp. v. Newcomb, 91S.E.2d 447, 452, 197 Va. 836 (1956) (hold-ing that “the presumption is, in the absenceof such proof, that the words were not usedaimlessly”).

25 Id.26 See id. at 451 (quoting Ames v. Am. Nat’l

Bank, 176 S.E. 204, 216, 163 Va. 1 (1934)).27 Monterey Corp. v. Hart, 224 S.E.2d 142,

147, 216 Va. 843 (1976) (quoting BLACK’SLAW DICTIONARY 31 (4th ed. 1951)). See alsoIns. Co. of N. Am. v. U.S. Gypsum, 678 F.Supp. 138, 142 (W.D. Va. 1988) (notingVirginia’s definition of accident in MontereyCorp.).

28 See Aetna Ins. Co. v. Carpenter, 196 S.E.641, 646, 170 Va. 312 (1938) (“accident” ininsurance policy construed as “an unex-pected or unintended event occurring with-out known or assignable cause” (citationsomitted)); Ocean Accident & Guar. Corp. v.Glover, 182 S.E.2d 221, 222, 165 Va. 283(1935) (“accidental” in insurance policyconstrued to include “unintended” and“unexpected” (quoting WEBSTER’S NEW

INTERNATIONAL DICTONARY (1933))).29 See Monterey Corp., 224 S.E.2d at 147

(relying on BLACK’S LAW DICTIONARY 31 (4thed. 1951)); Glover, 182 S.E.2d at 222 (rely-ing on WEBSTER’S NEW INTERNATIONAL

DICTONARY (1933)). See also Carpenter, 196S.E. at 646 (reyling on CORPUS JURIS

SECUNDUM).30 See supra notes 21-25.31 Webster’s defines “sudden” as: 1. Taking

place without warning <a sudden attack>2. Hasty: abrupt <a sudden, unannounceddeparture> 3. Brought about in a shorttime.” WEBSTER’S II NEW COLLEGE DICTIONARY

1101 (1995). Similarly, Random Housedefines “sudden”: “1. happening, coming,made, or done quickly, without warning, orunexpectedly: a sudden attack. 2. occurringwithout transition from the previous form,state, etc.; abrupt: a sudden turn. 3. impetu-ous, rash.” RANDOM HOUSE UNABRIDGED

DICTIONARY 1900 (Stuart Berg Flexner, et al.eds., 2d ed. 1993). Thus, it is reasonable toconclude that plain and ordinary definition of“sudden” carries temporal and/or unexpect-ed elements.


32 See generally Claussen v. Aetna Cas. & Sur.Co., 380 S.E.2d 686, 688, 259 Ga. 333(1989) (reviewing dictionary definitions andpopular usages and concluding that “sud-den” can mean “unexpected” with or with-out a temporal element).

33 Am. Health Ins. Corp. v. Newcomb, 91S.E.2d 447, 452, 197 Va. 836 (1956). Seesupra notes 23-26 (discussing “whole con-tract” interpretation).

34 See supra notes 27-29 (discussing con-struction of “accidental”).

35 See generally Morrow Corp. v. HarleysvilleMut. Ins. Co., 101 F. Supp. 2d 422, 431(E.D. Va. 2000) (finding that “sudden andaccidental” incorporates a temporal element“because [this construction] gives effect toboth words in the phrase”).

36 See, e.g., Ala. Plating Co. v. U.S. Fid. &Guar. Co., 690 So. 2d 331, 334-36 (Ala.1996) (holding that “sudden” is ambiguousin its incorporation of a temporal element,but decision does not consider effect of“accidental” on construction of “sudden”);Am. States Ins. Co. v. Kiger, 662 N.E.2d945, 947 (Ind. 1996) (“sudden” is ambigu-ous respecting temporality, but decisiondoes not consider construction with “acci-dental”); Greenville County v. Ins. ReserveFund, 443 S.E.2d 552, 313 S.C. 546(1994); Claussen, 380 S.E.2d at 688-89(finding no conflict between definition of“occurrence” and “sudden and accidental”exception, but not considering conflictbetween “sudden” and “accidental”);.

37 See supra notes 24-26.38 Outboard Marine Corp. v. Liberty Mut. Ins.

Co., 607 N.E.2d 1204, 154 Ill. 2d 90 (1992)(discussed infra).

39 St. Paul Fire & Marine Ins. Co. v. McCormick& Baxter Creosoting Co., 923 P.2d 1200,324 Or. 184 (1996) (discussed infra).

40 Queen City Farms, Inc. v. Cent. Nat’l Ins.Co. of Omaha, 882 P.2d 703, 721, 126Wash. 2d 50 (1994) (discussed infra).

41 See McCormick & Baxter Creosoting, 923P.2d at 1217; Queen City Farms, 882 P.2dat 721.

42 See supra notes 27-29.43 See Outboard Marine, 607 N.E.2d at 1219

(acknowledging that “sudden” may becomesurplusage if “sudden and accidental” isambiguous, but finding contradictionbetween insuring agreement and such a

construction of the sudden and accidentalexclusion).

44 See Outboard Marine Corp. v. Liberty Mut.Ins. Co., 607 N.E.2d 1204, 1219, 154 Ill. 2d90 (1992).

45 See Claussen v. Aetna Cas. & Sur. Co., 380S.E.2d 686, 688, 259 Ga. 333 (1989) (hold-ing that “[t]he pollution exclusion clausefocuses on whether the ‘discharge, disper-sal or release’ of the pollutants is unexpect-ed and unintended; the definition ofoccurrence focuses on whether the proper-ty damage is unexpected and unintended”).

46 See, e.g., Joy Techs., Inc. v. Liberty Mut. Ins.Co., 421 S.E.2d 493, 498-500, 187 W. Va.742 (1992) (holding that sudden and acci-dental exclusion provides coverage to“unexpected and unintended” pollutingevents on basis of representations made tostate by insurance industry).

47 P’ship Umbrella, Inc. v. Fed. Ins. Co., 530S.E.2d 154, 160, 260 Va. 123 (2000).

48 See Allstate Ins. Co. v. Eaton, 448 S.E.2d652, 655, 248 Va. 426 (1994) (holding thatthe courts are “not empowered to supply byjudicial construction a requirement that thelegislature has not chosen to enact” andthat when “the terms of [an] insurance poli-cy do not conflict with…provisions of law,this Court [sic] must enforce the parties’contract as written” (citations omitted)).

49 See generally United States Auto. Ass’n v.Webb, 369 S.E.2d 196, 198-199, 235 Va.655 (1988) (refusing to decide coverageissue on grounds of insured’s “reasonableexpectations”). The “reasonable expecta-tions” doctrine holds that courts shouldconstrue insurance contracts in accordancewith the reasonable expectations of theinsured. Ga. Farm Bureau Mut. Ins. Co. v.Meyers, 548 S.E.2d 67, 69, 249 Ga. App.322 (2001).

50 See Eaton, 448 S.E.2d at 655.51 See Holmes, supra note 6, § 1.15.52 See Lerner v. Gen. Ins. Co. of Am., 245

S.E.2d 249, 251, 219 Va. 101 (1978) (hold-ing that “an insurer’s obligation todefend…arises whenever the complaintalleges facts and circumstances, some ofwhich would, if proved, fall within the riskcovered by the policy” (citations omitted)).

53 See id.54 See Employers’ Liab. Assurance Corp. v.

Taylor, 178 S.E. 772, 773, 164 Va. 103(1935) (automobile liability insurance policy).

55 See Va. Elec. & Power Co. v. NorthbrookProp. & Cas. Ins. Co., 475 S.E.2d 264, 266,252 Va. 265 (1996) (holding that “the obliga-tion to defend is not negated merely by theunsuccessful assertion of a claim otherwisefacially falling within the risks covered by thepolicy”).

56 See Morrow Corp. v. Harleysville Mut. Ins.Co., 101 F. Supp. 2d 422, 431 (E.D. Va.2000).

57 See id. at 431-32 (quoting Va. Elec. & PowerCo., 475 S.E.2d at 265-66).

58 See London Guarantee & Accident Co. v.C.B. White & Bros., 49 S.E.2d 254, 256,188 Va. 195 (1948).

59 See U.S. Fire Ins. Co. v. Aspen Bldg. Corp.,367 S.E.2d 478, 479-80, 235 Va. 263(1988).

David Jensen is a candidatefor juris doctor in the class of2003 at Washington and LeeUniversity School of Law inLexington, Virginia. He is thearticles editor of this publicationand writes for the Washingtonand Lee Law Review. Mr. Jensenis originally from WashingtonState.


Olechs filed suit in the UnitedStates District Court for theNorthern District of Illinoisagainst Willowbrook alleging thatthe additional 18-foot easementrequirement violated the EqualProtection Clause of theFourteenth Amendment. TheOlechs’ complaint alleged: 1) therequirement was “irrational andwholly arbitrary;” 2) ill-will dueto their having previously filed aseparate, successful lawsuitagainst Willowbrook motivatedthe village in imposing the widereasement requirement on theOlechs; and, 3) Willowbrook“acted either with the intent todeprive Olech of her rights or inreckless disregard of her rights.”Village of Willowbrook v. Olech,528 U.S. 562, 563 (2000). Thedistrict court dismissed the com-plaint for failure to state a claimon equal protection grounds. TheSeventh Circuit reversed, holdingthat a plaintiff can bring forth anequal protection claim when thecomplaint alleges a state actedout of spite for reasons unrelatedto any legitimate state objective.

The Supreme Court grantedcertiorari to address the questionof whether a plaintiff can allegean equal protection violation as a“class of one.” Id. at 564. TheCourt concluded that complaintsbased on an equal protection vio-lation filed by a “class of one” aresufficient as long as the complaintasserts that the alleged actor oractors intentionally treated themdifferently from other personssimilarly situated without arational basis for the differenttreatment. The Court noted that“the purpose of the Equal Protec-tion Clause of the Fourteenth

Amendment is to secure everyperson within a state’s jurisdic-tion against intentional and arbi-trary discrimination, whetheroccasioned by express terms of astatute or by its improper execu-tion through duly constitutedagents.” Id. (quoting Sioux CityBridge Co. v. Dakota County, 260U.S. 441, 445 (1923)). The Courtconcluded that the complaintsuccessfully alleged that Willow-brook intentionally discriminatedagainst the Olechs by condition-ing connection to the municipalwater supply upon their grantingWillowbrook a 33-foot easementwhile only a 15-foot easementwas required from otherlandowners making the samerequest. The Court held that thecomplaint called the additional18-foot width “irrational andwholly arbitrary,” thus lackingany rational connection to a legit-imate state interest. Id. at 563.Moreover, the complaint revealedthat Willowbrook eventually pro-vided water service to the Olechs’property following receipt of onlya 15-foot easement from theOlechs’. In conclusion, the Courtheld it unnecessary to addressthe issue of Willowbrook’s “sub-jective motivations” in its analy-sis since a “class of one” can file aclaim for relief under the EqualProtection Clause of the Four-teenth Amendment. Id. at 564.

In a concurring opinion, Jus-tice Breyer addressed Willow-brook’s assertion that finding forthe Olechs would in theory“transform many ordinary viola-tions of city or state law into vio-lations of the Constitution.” Id. at565. Willowbrook claimed thatdifferent treatment of similarly

United StatesSupreme Court

“Class of One” Can FileEqual Protection ClaimVillage of Willowbrook v.Olech, 528 U.S. 562 (2000)

by Abigail Walsh, Class of 2003 Washington and Lee University School of Law

Grace Olech and her late hus-band petitioned the Village ofWillowbrook (“Willowbrook”) toprovide municipal water serviceto their property. Initially,Willowbrook held the serviceconnection contingent upon theOlechs granting Willowbrook a33-foot easement on their proper-ty. Upon discovering thatWillowbrook only requested a 15-foot easement from otherlandowners seeking a connectionto the municipal water supply,the Olechs filed an objection withWillowbrook. Three months afterthe Olechs objected, Willowbrookdownsized the easement requestto 15-feet for the Olechs. The

CaseDigest


situated individuals applying forzoning changes would result incourts holding that the actionlacks a rational basis. JusticeBreyer turned to the Court ofAppeals finding that this casealleged ill-will. He agreed with theconclusion of the Court ofAppeals that the Olechs’ caseresembled Esmail v. Macrane, 53F.3d 176, 180 (7th Cir. 1995)where the court found the differ-ential treatment of the plaintiff aresult of an “illegitimate desire toget him,” rather than honest pros-ecutorial discretion. Olech at 565.Mere allegation of Willowbrook’sill-will against the plaintiff “is suf-ficient to minimize any concernabout transforming run-of-the-mill zoning cases into cases ofconstitutional right.” Id. at 566.

FederalCircuit Court

Dismissal of Trespassand Negligence Claims for Migration of Petroleum Contamination AffirmedFirst Virginia Banks, Inc. v. BP Exploration & Oil, Inc.,206 F.3d 404 (4th Cir. 2000)

by Meitra Farhadi, Class of 2002 Washington and Lee University School of Law

First Virginia Banks, Inc.(“First Virginia”), owner ofparcels of land located near theformer site of a gas station, sued

BP Exploration & Oil, Inc. (“BP”),the station operator, for trespass,negligence, and breach of con-tract in 1998. First Virginia’sclaims were based on migrationof petroleum contamination fromthe former gas station site intogroundwater beneath First Vir-ginia’s properties in Falls Church.First Virginia was notified of thecontamination of the former gasstation site in 1988, and in 1989it obtained test results confirmingthat the contamination hadreached the groundwater beneathits own properties. The UnitedStates District Court for theEastern District of Virginiagranted summary judgment toBP with respect to the negligenceand trespass claims, and after abench trial entered a final judg-ment in BP’s favor on the breachof contract claim. First Virginiaappealed, contending that thedistrict court erred in grantingsummary judgment with regardto its trespass claim, and assert-ing that it was a third-party ben-eficiary to an earlier settlementagreement between BP and theowner of the former station site.

In affirming the judgment ofthe district court, the UnitedStates Court of Appeals for theFourth Circuit held that: (1) thetrespass cause of action accrued,under Virginia law, when con-tamination was discovered onlandowner’s property; (2) limit-ing landowner’s introduction ofpre-settlement agreement evi-dence was not an abuse of dis-cretion; and (3) First Virginiawas not a third-party beneficiaryof the settlement agreementbetween the gas station operator

and the owner of the property onwhich station was located.

The Fourth Circuit reviewedthe timing issues under theframework of Churchill Apart-ments Associates v. City ofRichmond, 36 Va. Cir. 204(1995). In Churchill, the circuitcourt held that, in the case of aninjury caused by the continuingmigration of methane gas, thecause of action accrued whenthe methane first migrated ontothe plaintiff’s land. Id. at 207.The Fourth Circuit followed thisrationale in holding that FirstVirginia’s trespass claim hadaccrued in 1989, and that thestatute of limitations on thatclaim had expired in 1994, fouryears before First Virginia filedthe present action.

Under Federal Rule of CivilProcedure 52, a party has theright to be “fully heard” before ajudgment is rendered on a partic-ular issue. The Court of Appealsstated that the right to be “fullyheard” does not amount to a rightto introduce every shred of evi-dence that a party wants, withoutregard to the probative value ofthat evidence. In reviewing thedistrict court’s determination, theFourth Circuit acknowledged thatthe district court did not abuse itsdiscretion in placing limitationson First Virginia’s introduction ofpre-agreement evidence.

Finally, the Fourth Circuitnoted that under Virginia law, aparty incidentally benefited by anagreement does not attain third-party beneficiary status. A partyclaiming third-party beneficiarystatus must show that the partiesto the underlying agreement


“clearly and definitely intendedto bestow a direct benefit uponit.” Obenshain v. Halliday, 504 F.Supp. 946, 956 (E.D.Va. 1980).After reviewing the record onappeal, the Fourth Circuit con-cluded that the district court’sfactual determination, that theparties to the settlement agree-ment did not intend for the agree-ment to benefit First Virginiadirectly, was not clearly erro-neous. Therefore, the courtaffirmed the judgment of the dis-trict court.

Denial of a SingleTelecommunicationsTower Site ApplicationDoes Not ViolateTelecommunications Act

360° Communications Co. of Charlottesville v. Board of Supervisors of AlbemarleCounty, 211 F.3d 79 (4th Cir. 2000)

by Sara McGeorge, Class of 2003 Washington and Lee University School of Law

360° Communications, Inc.(“360° Communications”), aprovider of wireless telephoneservices, submitted a special-usepermit application to the Albe-marle County Board of Supervi-sors (“Albemarle County”)seeking permission to place atelecommunications tower onthe ridgeline of Dudley Moun-tain in order to improve thewireless telephone service in thearea. When Albemarle County

denied the application, 360°Communications brought anaction in federal court under §704 of the TelecommunicationsAct. The district court foundsubstantial evidence to supportthe Albemarle County’s decisionto deny the application, yet stillfound the denial to be in viola-tion of § 704(a)(7)(B)(i)(II) ofthe Telecommunications Act.The United States Court ofAppeals for the Fourth Circuit(“Fourth Circuit”) agreed withthe first part of the districtcourt’s holding and reversedwith respect to the second part.

The Fourth Circuit agreedwith the district court’s findingthat substantial evidence sup-ported Albemarle County ‘s deci-sion to deny the application. Tosupport its finding, the FourthCircuit—as did the districtcourt—cited both that citizenshad spoken against the proposedtower at hearings and that thetower would blatantly have vio-lated established county policyobjectives expressed in thecounty’s comprehensive plan.

The district court had orderedAlbemarle County to grant thepermit within 45 days, holdingthat denial of the site permitconstituted a violation of 47U.S.C. § 332(c)(7)(B)(i)(II), ofthe Telecommunications Act. Insupport of its order, the districtcourt found that although 360°Communications had discussedthe use of a combination of sites,it had no “reasonable alterna-tives” to the mountaintop site.According to the district court,for an alternative site to be “rea-sonable,” it must combine a highlevel of wireless service with log-

ical feasibility, commonly usedtechnology, and a cost that isclose to the industry-wide normfor similar circumstances. 360°Communications Co. of Char-lottesville v. Board of Supervisorsof Albemarle County, 50 F. Supp.2d 551, 564 (W.D.Va. 1999).

The Fourth Circuit reversedthe district court’s ruling in favorof 360° Communications. TheFourth Circuit quoted the sec-tion of the TelecommunicationsAct at issue in this case: “The[local] regulation of the place-ment…of personal wireless serv-ice facilities…shall not prohibitor have the effect of prohibitingthe provision of personal wirelessservices.” 360° CommunicationsCo., 211 F.3d at 86 (quoting 47U.S.C. § 332(c)(7)(B)(i)(II)). TheFourth Circuit framed the issuebefore it as “whether a singledenial of a site permit could everamount in effect to the prohibi-tion of wireless services.” Id. TheFourth Circuit found that, in the-ory, a single denial could effect aprohibition of service in theunlikely event that the deniedlocation was the only possiblesite from which to provide serv-ice. Those circumstances werenot present here. Id. at 86-87.

The Fourth Circuit then dis-cussed and rejected the approachthat the Second and ThirdCircuits have taken in interpret-ing § 332(c)(7)(B)(i)(II). ThoseCircuits have held that “thedenial of a permit for a site that is‘the least intrusive means toclose a significant gap in service’would amount to a denial of wire-less services in violation of thatsection.” Id. at 87 (citationsomitted). The Fourth Circuit


rejected this analysis, explainingthat communities have the rightto prefer a more intrusive pro-posal in order to secure betterwireless service or to promotecommercial goals. According tothe Fourth Circuit, in order for360° Communications to showthat Albemarle County violated §332(c)(7)(B)(i)(II), it would need“to show from language or cir-cumstances not just that thisapplication has been rejected,but that further reasonableefforts are so likely to be fruitlessthat it is a waste of time even totry.” Id. at 88 (citation omitted).

4th Circuit DiscussesConstitutionality of§704(a) of theTelecommunications Actin Upholding CountyDenial of ConditionalUse Permit for Tower

Petersburg CellularPartnership, d/b/a 360°Communications Co. v. Bd. ofSupervisors of NottowayCounty, 205 F.3d 688 (4th Cir. 2000)

by Leslie Skiba, Class of 2002 Washington & Lee University School of Law

The County of Nottoway(“Nottoway County”) appealedan order of the United States Dis-trict Court for the Eastern Dis-trict Court of Virginia issuing awrit of mandamus directing thecounty to grant 360° Communi-

cations Company (“360° Com-munications”) a conditional usepermit to erect a wireless com-munications tower. NottowayCounty argued that it supportedits denial of the conditional usepermit with “substantial evi-dence” as required by §704(a) ofthe Telecommunications Act, andeven if it had not, the require-ment that it apply a federal stan-dard in making zoning decisionsviolates the Tenth Amendment tothe United States Constitution. Adivided Fourth Circuit panelreversed without reaching agree-ment on grounds.

When 360° Communicationsapplied for a conditional use per-mit to erect a wireless tower inNottoway County, the county’splanning commission held publichearings on the application. Thecommission unanimously recom-mended approval of the permitso long as 360° Communicationscould secure approval by theFederal Aviation Administration(“FAA”). Nottoway County alsowould have free access to thetower for emergency broadcast-ing and the tower would notinterfere with television recep-tion. However, the NottowayBoard of Supervisors denied thepermit after four constituentsexpressed opposition to thetower based on three primaryconcerns: (1) that pilots wouldcrash into the tower on their wayto a nearby landing strip, (2) thatthe tower might fall down ontopeople or surrounding property,and (3) that the tower would bean attractive nuisance to chil-dren. The FAA and 360° Commu-nications had explained to theBoard of Supervisors that those

concerns were unrealistic beforethe board decided to deny thepermit.

Subsequently, the U.S. DistrictCourt for the Eastern District ofVirginia issued a writ of man-damus directing the county togrant a conditional use permit to360° Communications after find-ing that the decision was not sup-ported by substantial evidence.On appeal, Nottoway Countyargued that its decision to denythe permit was supported by“substantial evidence” asrequired by §704(a)(7)(B)(iii) ofthe Telecommunications Act. Id.at 693. Additionally, NottowayCounty argued that §704(a) vio-lates the Tenth Amendment ofthe United States Constitution byrequiring localities to apply a fed-eral standard in making zoningdecisions. Id. The Fourth CircuitCourt of Appeals reversed the dis-trict court and remanded the caseto the district court for vacationof its writ of mandamus. WhileJudges Neimeyer and Widenerboth decided to reverse the dis-trict court, they each did so fordiffering reasons.

Judge Neimeyer found that§704(a) provides states with ameaningless “choice” betweenregulating according to federalstandards and abandoning thebusiness of regulating tower sit-ing all together. Id. at 703. Heconcluded on those grounds that§704(a) commandeers state leg-islative processes and, therefore,violates the Tenth Amendment.He did agree, however, with thedistrict court that the County’sdenial of the permit was not sup-ported by substantial evidencewhich he interpreted to mean


relevant evidence that a reason-able legislator might accept tosupport a conclusion. Neimeyerconcluded that a reasonable leg-islator would not have deniedthe permit based on the unrea-sonable concerns of a handful ofconstituents. He distinguishedthis case from AT&T WirelessPCS, Inc. v. City Council ofVirginia Beach, 155 F.3d 423(4th Cir. 1998) and AT&TWireless PCS, Inc.v Winston-Salem Zoning Board, 172 F.3d307 (4th Cir. 1999) where theCourt of Appeals held that wide-spread concerns about thechange that a commercial com-munications tower would haveon the residential character of aneighborhood amounted to sub-stantial evidence. Id. at 695-696.

Judge Widener found thatNottoway County did support itsdenial of the permit with sub-stantial evidence since all con-stituents who spoke opposed thetower. Id. at 709. Unlike JudgeNeimeyer, he framed the issueas whether the community’sopposition was compelling inthe mind of the legislator ratherthan whether the complaints ofconstituents were reasonableand numerous enough. Widenerfound that the district courtwrongly considered the numberof residents opposing the permitapplication and discountedthose concerns as unreasonable.He did not reach the constitu-tional issue.

On dissent, Judge King assert-ed that §704(a) is constitutional.Id. at 710-720. He found that the“substantial evidence” require-ment does not infringe on theTenth Amendment since it pres-

ents state and local governmentswith a meaningful, though diffi-cult, choice between denyingpermits only upon substantialevidence and not regulatingtower siting at all. He found thatthe choice constitutes condition-al preemption rather than coer-cion. King agreed with Neimeyerthat Nottoway County failed tosupport its decision with sub-stantial evidence.

Mootness, ChangingRequirements andInterlocutoryJurisdiction for National PollutionDischarges EliminationSystem Permits

Am. Canoe Ass’n v. MurphyFarms, Inc., No. 99-1115,2000 WL 328027 (4th Cir.2000) (unpublished tabledecision)

by Angela Hepler, Class of 2004 Washington and Lee University School of Law

Murphy Farms, Inc (“MurphyFarms”), operator of a sow farmin North Carolina, sought inter-locutory review of a preliminaryinjunction requiring it to applyfor a permit under the CleanWater Act (“CWA”) because ofpast pollutant discharges into awaterway. Murphy Farms alsoappealed a partial summaryjudgment in favor of theappellees, American CanoeAssociation and other citizengroups (collectively “ACA”),

finding that Murphy Farms’s pastdischarges violated the CWA. Inan unpublished, per curiamopinion, the court remanded thepreliminary injunction appeal tothe district court for a determi-nation of mootness, due to statepolicy changes. The courtdeclined to extend pendentinterlocutory jurisdiction to thepartial summary judgment. SeeAm. Canoe Ass’n, 2000 WL328027, at *2.

Murphy Farms operated a sowfarm, housing 4,400 confinedsows. Waste from the sows wasplaced in a lagoon for anaerobictreatment and then sprayed ontofields as fertilizer. On two occa-sions, runoff from sprayed fieldsentered a local tributary. MurphyFarms operated under the NorthCarolina Department of Environ-mental and Natural Resources(“North Carolina DENR”) AnimalWaste Management Plan, whichprohibits discharges to ground-water. See id. at *1. The appellantnever applied for a CWA NationalPollution Discharges EliminationSystem (“NPDES”) permit,because North Carolina DENRpolicy allowed the violators tocorrect unlawful discharges inlieu of applying for a permit. ACAfiled suit against Murphy Farmsunder the citizen suit provisionof the CWA. ACA alleged thatMurphy Farms violated the CWAby failing to obtain a NPDES per-mit after making unauthorizeddischarges. Further, ACA allegedthat the discharges violated theCWA. The district court grantedpartial summary judgment infavor of ACA and a limited pre-liminary injunction requiringonly that Murphy Farms to applyfor a NPDES permit. Id.


Murphy Farms argued that theissues underlying the court’s pre-liminary injunction were “inti-mately bound up with” the issuesunderlying the court’s decision togrant a partial summary judg-ment, and therefore interlocutoryjurisdiction extended to bothdecisions. The district court’spreliminary injunction was madebecause Murphy Farms did notobtain a NPDES permit after theprevious discharges, and thisissue was not found by the 4thCircuit to be bound up with theissues surrounding the prelimi-nary injunction. The preliminaryinjunction was granted not on thebasis of “irreparable harm” fromfuture discharges, but rather fromthe harm to ACA resulting from“the absence of any monitoring”of Murphy Farms.

North Carolina DENR changedits policies after the commence-ment of litigation, requiring aNPDES permit for facilities thathave more than 2,500 swine,employ a wet waste treatmentsystem, have made documenteddischarges into surface waters inthe past, or have been found to bein violation of the CertifiedAnimal Waste Plan. BecauseMurphy Farms apparently metthe revised criteria, and thereforewould be required to obtain aNPDES permit notwithstandingthe preliminary injunction, thecase was remanded to the districtcourt for resolution of the moot-ness issue. See Id. at *4.

Navy Decision toRelocate Jet AircraftComplies with NEPA

Citizens Concerned About JetNoise v. Dalton, 48 F. Supp.2d 582 (E.D. Va. 1999), aff’dwithout opinion, 217 F.3d838 (4th Cir. 2000)

by Mike Adamson, Class of 2004 Washington and Lee University School of Law

The underlying action chal-lenged the transfer of 156 jet air-craft from Cecil Field inJacksonville, Florida (closed bycongressional mandate) to theunder-capacity Naval Air StationOceana (”Oceana”) in VirginiaBeach. The district court foundthe Navy’s Final EnvironmentalImpact Statement (“FEIS”) suffi-cient to meet the requirements ofthe National Environmental Poli-cy Act of 1969 (“NEPA”), in thatit presented “the informationnecessary to make an informeddecision.” Citizens ConcernedAbout Jet Noise v. Dalton, 48 F.Supp. 2d 582, 608 (E.D. Va.1999). The plaintiff failed toprove that the FEIS was inade-quate in any respect and theNavy’s decision to relocate theplanes was not arbitrary andcapricious.

As a part of the NationalDefense Authorization Act for fis-cal year 1991, Congress estab-lished the Base Realignment andClosure (“BRAC”) Commissionto review recommendations forclosures from each servicebranch and submit a report to thePresident in 1991, 1993, and1995. If the BRAC report wasaccepted by the President and by

Congress, it became binding lawon the Secretary of Defense. The1993 report required the closureof Cecil Field. The 1995 reportdirected the transfer of the CecilField aircraft to other east coaststations, specifically mentioningthe extra capacity at Oceana. TheNavy then applied various opera-tional screening criteria to nar-row the possibilities amongtwenty eastern air stations downto five realignment scenarios,described and analyzed in theFEIS published March 20,1998.The Navy’s preferred scenario inthe FEIS was to move all 180planes to Oceana. The finalRecord of Decision, released May18, 1998, indicated that while thepreferable environmental sce-nario would move only 120planes to Oceana, the selectedscenario would move 156.

The plaintiff, a Virginia corpo-ration composed of area residentsconcerned with the impacts ofthe selected jet realignment, chal-lenged the reasonableness andadequacy of the FEIS. WhileNEPA does require the prepara-tion of an environmental impactstatement for any major federalaction, the court, citing Robertsonv. Methow Valley Citizens Council,490 U.S. 332, 350-51 (1989), stat-ed that “[i]f the adverse environ-mental effects of the proposedaction are adequately identifiedand evaluated, the agency is notconstrained by NEPA from decid-ing that other values outweighthe environmental costs.” Thecourt also cited Fayetteville AreaChamber of Commerce v. Volpe,515 F.2d 1021, 1024 (1975), inholding that “[t]he standard forjudicial review is whether theagency decision, in view of theFEIS, was arbitrary and capri-


cious, an abuse of discretion, ornot in accordance with the law.”

The court addressed eachspecific concern with the FEISraised by the plaintiff. The FEISconsidered all necessary alterna-tives based on reasonable inter-pretations of the Base ClosureAct and the 1995 BRAC report.Environmental factors need notbe considered in the develop-ment of the alternatives. Instead,NEPA requires only that theFEIS subject chosen alternativesto an environmental impactanalysis sufficient to properlyinform the decision-makers. Useof 1990 census data and averagesound levels, instead of single-event noise impacts, to evaluatethe noise impact was appropri-ate and adequately informed thedecision maker of the significantadverse noise consequences forthe human environment. “[T]hechoice of scientific methodologyused in an EIS is within thesound discretion of the agency.”Id. at 596. As “no federal fundswould be expended in privatemitigation efforts, there was noneed to include those costs” as apart of the FEIS cost-benefitanalysis. Id. at 597. Such costsand the impact on property val-ues could also be properlyexcluded as too speculative. Theincreased safety risks were ade-quately considered and “ques-tions of methodology are withinan agency’s discretion so long asthe method chosen reasonablyinforms the decision-maker andthe public of potential environ-mental impacts and allowsappropriate comparison betweenalternatives.” Id. at 599. TheFEIS sufficiently analyzed airquality impact. NEPA requiresonly that pollutant levels be cal-

culated without significant error,not that Clean Air Act require-ments be met. The FEIS provid-ed the required review ofpossible mitigation efforts. Theenvironmental justice analysis,required by Executive Order12898, was completed and wasnot subject to judicial review.The Navy properly consideredreasonably certain cumulativeimpacts. Finally, the court dis-missed the argument that theNavy did not comply with NEPAsimply by having a preferredalternative to send all planes toOceana before preparing theFEIS. NEPA requires only thatthe decision maker be open toreconsider alternatives in light ofthe FEIS. Subsequently, theFourth Circuit affirmed the dis-trict court’s holding.

Federal District Court

Insurers Required toDefend Policyholdersfor EnvironmentalDamages Unless PolicyContains AbsoluteExclusion

Morrow Corp. v. HarleysvilleMut. Ins. Co., 101 F.Supp.2d422 E.D. Va., 2000

by Rob Scott, Class of 2004 Washington and Lee University School of Law

In a diversity case with no Vir-ginia law on point, a federal dis-trict court interpreted Virginia

law to require general liabilityinsurers to defend their policy-holders in actions for environ-mental damages, includingrestitution of remediation costs,unless the policy contains anabsolute exclusion for all environ-mental damages.

The lessors of a property that adry cleaning business had occu-pied sued the owners of the drycleaning business (“plaintiffs”) onallegations that the plaintiffs hadspilled or discharged per-chloroethylene (“PCE”) andthereby contaminated the leasedproperty. The various companiesthat insured the plaintiffs(“defendants”) declined toindemnify or defend the plaintiffsand the plaintiffs were forced tosettle. The plaintiffs then suedthe defendants for breach of con-tract based on the defendants’failure to defend and indemnifythe plaintiffs. The District Courtapplied Virginia law to the case.The plaintiffs moved for summa-ry judgment on the duty todefend and the defendants filed across-motion for summary judg-ment on both the duty to defendand the duty to indemnify.Although there was no applicableVirginia law on the precise issue,the District Court held that Vir-ginia would follow the generalrule that all policies in effect fromthe date of the injury-in-factthrough the time of the progres-sive damage were potentiallyimplicated.

The court then divided thevarious insurance policies intothree types and ruled separatelyas to whether each type createda duty to defend on the underly-ing cause of action. The first pol-


icy type contained an “absolute”pollution exclusion for damageresulting from the “actual orthreatened discharge, dispersal,release, or escape of pollutants.”The court found that Virginialaw requires a court to give ordi-nary meaning to the unambigu-ous language of an insurancepolicy and held that no duty todefend or indemnify arose underthis type of policy.

The second type of policy con-tained the same exclusion as thefirst type but with an exceptionto that exclusion for dischargesthat were “sudden and acciden-tal.” Although the SupremeCourt of Virginia has yet to ruleon the interpretation of thisexception and some jurisdictionsinterpret this exception torequire only that a discharge beunintended, the District Courtcited Virginia’s rule that no wordin an insurance policy is to betreated as meaningless and con-sequently held that Virginiawould most likely require thatthe discharge be both abrupt andunintended. The court then heldthat the underlying complaintincluded allegations of dischargesthat could be reasonably inter-preted as both sudden or abruptand accidental or unintended.Thus, the second type of policycreated a duty to defend.

The third type of policy pro-vided coverage for injury orproperty damage resulting fromthe discharge or release of pollu-tants. The defendants arguedthat these policies did not applybecause the complaint allegedthat PCE was first releasedbefore the policies took effectand the policies stated that only

policies in effect when the dam-age first manifests itself wouldapply. The court held that everyrelease of PCE created damagethat manifested itself at the dateof the release, thus the thirdtype of policy created a duty todefend.

Lastly, the defendants con-tended that the policies in ques-tion only covered actions fordamages and thus did not applyto the underlying case because itwas an action for restitution ofcosts incurred to remediate envi-ronmental harm. The courtnoted that some jurisdictionshave held that, according tostrict legal definitions, an actionfor restitution is an action forequitable relief and not an actionfor damages. Although there isno Virginia law on the subject,the District Court again citedVirginia’s rule that the terms ofan insurance agreement are tobe given their ordinary and plainmeaning and held that environ-mental remediation costs arewithin the ordinary and plainmeaning of “damages” as theterm is used in a general liabilityinsurance policy. The defendantwas therefore liable for the plain-tiff’s defense costs. The courtruled that a decision on the dutyto indemnify must await furtherdevelopment of the factualrecord.

Antitrust ImmunityDenied to LandPreservation Group

Virginia Vermiculite, Ltd. v. W.R. Grace & Co.–Conn.,108 F. Supp. 2d 549 (W.D. Va. 2000)

by Tim Ballo, Class of 2004 Washington and Lee University School of Law

In deciding several cross-motions for summary judgment,the United States District Courtfor the Western District of Virginiarefused to exempt a nonprofit landpreservation organization fromantitrust liability. In so ruling, thecourt declined to sanction preser-vation as a goal furthering compe-tition, and denied that theNational Environmental PolicyAct (“NEPA”) and the NationalHistoric Preservation Act(“NHPA”) shielded such an organ-ization from antitrust liability.

Virginia Vermiculite, Ltd.(“VVL”), for itself and on behalfof A.D. Peers, who transferred hisclaims to VVL, and Millard F.Peers, Jr. and Norma Peers (col-lectively, “the Peers”) sued W.R.Grace & Co.–Conn. (“W.R.Grace”) and The Historic GreenSprings, Inc. (“HGSI”). VVL andW.R. Grace are competitors inthe mining of vermiculite, a min-eral found in only a few locationsin the United States. One suchdeposit exists in Louisa County,Virginia. A.D. Peers and M.F.Peers sold un-mined LouisaCounty land to W.R. Grace,which contracted to pay royaltiesto the sellers based on tonnagemined. W.R. Grace never mined


these parcels, however, and even-tually donated them, along withseveral other un-mined tracts, toHGSI, a nonprofit organizationcommitted to preserving land inLouisa County. W.R. Graceincluded restrictions in most ofthe conveyances prohibitingfuture vermiculite mining. Plain-tiffs attacked the transfers, citingviolations of the ShermanAntitrust Act (“Sherman Act”)and Virginia Antitrust Act(“VAA”), as well as several non-antitrust abuses.

The court granted defendants’motions for summary judgmentas to the plaintiffs’ claims underSherman Act §1, and the analo-gous claims under the VAA,because plaintiffs failed to supplyenough evidence to establish arelevant market. On the plain-tiffs’ Sherman Act §2 claims andanalogous VAA claims, the courtgranted defendants’ summaryjudgment motions as to themonopolization and attemptedmonopolization allegations forthe same reason, but denied sucha motion on VVL’s claims of con-spiracy to monopolize. Findingthe establishment of a relevantmarket unnecessary to sustainthe conspiracy action, the courtcited several W.R. Grace andHGSI documents to demonstratethat the conspiracy claims pre-sented numerous factual issues.Thus, on a finding of conspiracyto monopolize, VVL would beentitled to damages and/orinjunctive relief under theClayton Act. The court furtherdeclared, “it is unnecessary atthis stage to determine whetherthe antitrust laws recognizepreservation as a legitimate, pro-competitive goal.” Id. at 570.

The court also ruled on sever-al of HGSI’s affirmative defenses.First, HGSI contended that as acharitable organization, it wasimmune from antitrust liability,and further, that any finding ofliability under the Sherman Actwould be inconsistent with NEPAand NHPA. The court, however,granted plaintiffs’ motion forsummary judgment against thisdefense, contending that non-profit preservation organizationshave no such immunity. Id. at603. The court also cited theFourth Circuit’s ruling that theallegedly commercial nature ofthe transactions between W.R.Grace and HGSI, and the allegedconspiracy between HGSI and anon-exempt party would waivesuch immunity if it did exist.Virginia Vermiculite, Ltd. v. W.R.Grace & Co.-Conn., 156 F.3d 535,540-1 (4th Cir. 1998). Second,HGSI asserted a defense underthe First Amendment. The courtgranted summary judgment toHGSI on this defense, but onlyinsofar as applied in the Noerr-Pennington doctrine, whichgrants antitrust immunity tocompanies that work together tolobby for government action,when the restraint of trade is aconsequence of that action. 108F. Supp. 2d at 604. The court nextgranted plaintiffs’ summary judg-ment motion with respect toHGSI’s allegation that VVL’sclaims represented a “strategiclawsuit against public participa-tion” (“SLAPP suit”), finding that,in addition to being inapplicableat this stage of the trial and indis-tinguishable from HGSI’s Noerr-Pennington defense, the SLAPPsuit defense lacked recognition inthe Fourth Circuit. Id. at 604-5.

The court then denied HGSI’smotion for summary judgmentbased on laches and uncleanhands.

With regard to the VirginiaConspiracy Act, the court deniedboth sides’ motions for summaryjudgment, citing factual issues asto whether defendants actedtogether to further a conspiracyto monopolize. Next, the courtdenied W.R. Grace’s summaryjudgment argument that A.D.Peers had released his claimsagainst W.R. Grace. Continuingits consideration of the Peers’lost royalty claims, the courtrefused plaintiffs’ motion forsummary judgment on thealleged bad faith with which W.R.Grace exercised its contractualdiscretion. Subsequently, thecourt granted defendants’ motionfor summary judgment on plain-tiffs’ previously dismissed allega-tions of unjust enrichment,because the plaintiffs had failedto appeal the dismissal. Id. at609. Finally, the court found thatissues of fact existed as to plain-tiffs’ claims for past lost royaltydamages, but granted summaryjudgment to defendants on plain-tiffs’ claims for lost future royal-ties, contending the latter claimswere overly speculative.


VirginiaSupreme Court

Aggrieved LandownersEstopped from SeekingJudicial Remedies ForZoning Changes Due toFailure to File a TimelyAppeal of ZoningAdministrator’s OralDecision

Lilly v. Caroline County, 259 Va. 291, 526 S.E.2d 743 (Va. 2000)

by Angela Jones, Class of 2002 Washington and Lee University School of Law

Landowners Albert J. Lilly andJudith G. Lilly (“the Lillys”)appealed a holding of theCaroline County Circuit Courtthat they failed to exhaust admin-istrative remedies by not filing atimely appeal to the defendantZoning Administrator’s oral deci-sion as required by statute. TheSupreme Court affirmed the cir-cuit court’s decision.

The Lillys sought a declaratoryjudgment against defendants, theCounty of Caroline and Directorof Planning and CommunityDevelopment and Zoning Admin-istrator Michael A. Finchum, forFinchum’s decision to allow con-struction of a radio tower as a by-right use in a rural preservationzoning district. Defendants filed aspecial plea in bar seeking dis-missal of the Lillys’ motion andasserting that their attempt to

contest Finchum’s decision was“time barred.” At issue waswhether the trial court correctlyruled that the Lillys failed toexhaust administrative remediesby not filing a timely appeal tothe Board of Zoning Appeals(“BZA”), as required by Va. CodeAnn. § 15.2-2311(A).

In 1996, Walter Abernathyfirst approached Finchum,inquiring about the permittingprocedure necessary to con-struct a radio tower and broad-casting studio on a two acre landparcel in rural Caroline County.Finchum’s original answer wasthat he thought the tower andthe transmitting facilities werepermitted by right under thecurrent zoning ordinance, but atext amendment to the zoningordinance would be required toconstruct the broadcast studioas well as any other structures.

After site plans were filed for atower and broadcast studio,Finchum prepared a proposedtext amendment to the zoningordinance to permit, by specialexception, the use of radio/televi-sion studios and offices. Subse-quently, the county’s planningcommission held public hearingsat which the Lillys were presentand sometimes spoke. The pro-posed zoning text amendmentand special exception permitapplication were forwarded bythe planning commission to theCounty’s Board of Supervisors(“Supervisors”). During theSupervisors’ hearings, at whichthe Lillys were also present, itwas made clear by the CountyAttorney that Finchum, acting asZoning Administrator, woulddetermine whether the tower was

a by-right use and his decisioncould be appealed to the BZA.Finally, at the April 1998 meetingof the Supervisors, at which theLillys were present, Finchumstated his determination that thetower could be built without theapproval of a special exceptionpermit, and that his determina-tion could be appealed to theBZA. The Supervisors thenapproved the zoning text amend-ments as well as the applicationfor a special exception permit tooperate a broadcast facility onthe property. There were noappeals to the BZA.

Applicable law states that “[i]na land use context, a landownermay be precluded from making adirect judicial attack on a zoningdecision if the landowner hasfailed to exhaust ‘adequate andavailable administrative reme-dies’ before proceeding with acourt challenge.” Lilly v. CarolineCounty, 259 Va. 291, 296 (citingVulcan Materials Co. v. Bd. ofSupervisors, 238 Va. 24, 29, 381S.E.2d 215, 217 (Va. 1989)).Additionally, a person aggrievedby any decision of the ZoningAdministrator has the right toappeal to the BZA. Id. (citingCode of Va. §15.2-2311 (A)(1950)). There is no statutoryrequirement that the ZoningAdministrator’s decision be inwriting. Id. If this mandatoryappeal is not timely filed, theadministrative remedy has notbeen exhausted, and the ZoningAdministrator’s decision becomesa “thing decided” not subject tocourt challenge. Id. (citing DickKelly Enter. v. City of Norfolk, 243Va. 373, 378, 416 S.E.2d 680 (Va.1992)).


The Lillys stated the followingreasons as a basis for theirappeal: (1) Finchum’s decisionwas made prior to the first publichearing; (2) comments made atpublic hearings did not consti-tute notice of the decision; (3)they were not required to appeala decision to the BZA when sucha decision was made withouttheir knowledge and withoutnotice to them; and (4) theywere not required to appeal tothe BZA a decision which wasvoiced as to a matter not thenpending before Finchum or theCounty. Id. at 296.

The trial court found, and theVirginia Supreme Court affirmed,that the final decision was madeand communicated to the Lillysat the Supervisors meeting onApril 14, 1998, giving them actu-al notice, and that they did notfile a timely appeal to the BZA asrequired by code. A ZoningAdministrator must make clearthe basis of the decision. Id. at297 (citing Gwinn v. Alward, 235Va. 616, 622, 369 S.E.2d 410,413 (Va. 1988)). Finchum’s state-ments on April 14, 1998 com-plied with this requirement. Id.Additionally, the Lillys’ presenceat the April Supervisors meetingat which the decision wasannounced estopped them fromasserting lack of knowledge ornotice of the decision. Id. (citingCode of Va. § 15.2-2204(B)). Therecord simply did not supportthe Lillys’ fourth assertion, andthe case was distinguished fromVulcan, because applications forspecific relief were pending atthe time of the ZoningAdministrator’s decision. Id.

State Law Does NotPreempt County ZoningRegulations RegulatingHarvesting of Timber

Dail v. York County, 259 Va. 577 (Va. 2000)

by Casey Ratchford, Class of 2003 Washington and Lee University School of Law

Anne F. Dail and her sonJames T. Dail, III (“the Dails”)wanted to harvest timber on atract of land that they owned.This intended use of the landcomplied with Virginia’s “bestmanagement practices forforestry” but violated sections ofYork County’s local zoning ordi-nance. The Dails sought adeclaratory judgment that Vir-ginia Code § 10.1-1126.1 pre-empted and invalidated portionsof York County’s Standards forForestry Operations (“ForestryOrdinance”) § 24.1-419, Water-shed Management and ProtectionArea Overlay District (“WMPOrdinance”) § 24.1-376, andEnvironmental ManagementArea Overlay District (“EMAOrdinance”) § 24.1-372. Thetrial court granted York County’smotion to dismiss, holding that(1) the Dails had not exhaustedtheir administrative remediesand (2) even if they had, statelaw did not preempt and invali-date the local ordinances.

The Virginia Supreme Courtreversed the first part of the hold-ing. The Dail’s challenge was notthat the ordinances were invalidas applied to their property,which would have requiredexhaustion of administrativeremedies. Rather, the Dails

claimed that the ordinances wereinvalid as applied to any propertycovered by Virginia Code § 10.1-1126.1 because that state codeprovision preempted and invali-dated the local ordinances. Sucha challenge requires a determina-tion as to whether the ordinanceswere a valid exercise of the coun-ty’s zoning authority. Becauseneither the zoning administratornor the board of zoning appealshas authority to determine thevalidity of county ordinances, thepursuit of administrative reme-dies does not resolve the issue.Consequently, the court held thatthe Dails did not need to exhausttheir administrative remedies.

The Virginia Supreme Courtaffirmed the second part of theholding. First, the court held thatVirginia Code § 10.1-1126.1(B)did not preempt the ForestryOrdinance requiring submissionand approval of a forest manage-ment plan by the zoning admin-istrator. Virginia Code § 10.1-1126.1(B) authorizes a countyzoning administrator to reviewproposed silvicultural activity todetermine whether it complieswith local zoning requirements.The court held that this provi-sion is consistent with YorkCounty’s Forestry Ordinanceapproval requirement, and theapproval requirement does notconstitute the type of permit pro-hibited by Virginia Code § 10.1-1126.1(B). Second, the courtheld that Virginia Code § 10.1-1126.1(B), which forbids enact-ment of local ordinancesprohibiting silvicultural activity,does not preempt and invalidatethe EMA Ordinance regardingclear cutting of timber becausethe EMA Ordinance is merely alimitation on clear cutting, not an


absolute prohibition. Third, thecourt held that a conflict betweenthe buffer zone provisions of theordinance and the buffer zonessuggested by the State Forester’sbest management practices(“BMPs”) does not invalidate theordinance provisions. A state reg-ulation may invalidate a localordinance only if the state regula-tion has the force and effect oflaw. Because the BMPs are mere-ly guidelines and do not have theforce and effect of law, the courtheld that they did not invalidatethe buffer zone provisions of thelocal ordinances. The same hold-ing applies to conflicts betweenthe BMPs and the ordinance pro-visions regulating silviculturalactivity for the purposes of main-taining water quality. Again,because the BMPs are only guide-lines, the court held that they didnot invalidate the ordinance pro-visions regulating silviculturalactivity for the purposes of main-taining water quality.

Virginia Circuit Court

Damage to HistoricPlaces Sufficient Injuryto Confer Standing

Crutchfield v. State WaterControl Board, 2000 WL1051926 (Va. Cir. Ct.)

by Maynard Sipe, Class of 2002 Washington and Lee University School of Law

Petitioners, Frances Crutch-field and Henry Broaddus chal-

lenged a decision by the StateWater Control Board to issue aVirginia Pollution DischargeElimination System Permit to theCounty of Hanover. The petition-ers are owners of a farm locatednear the proposed discharge sitealong the Pamunkey River. Intheir petition, they alleged injuryto plant and animal life, injury tothe public’s recreational use ofthe river, and injury to certainhistoric attributes of their prop-erty. Respondents, the StateWater Control Board (“SWCB”)and the Department of Environ-mental Quality (“DEQ”), filed ademurrer contending the peti-tioners: 1) did not have standing;and 2) failed to perfect theirappeal by not joining a necessaryparty, Hanover County.

In addressing the respondents’assertion that the appeal was notperfected, the court noted thatthe Supreme Court of Virginiahad allowed the late interventionof a necessary party in Browning-Ferris Industries of South Atlantic,Inc. v. Residents Involved in Sav-ing the Environment, Inc., 254 Va.278 (Va. 1997), and granted peti-tioners leave to amend their peti-tion without further discussion ofthe issue.

Next, the court turned to therespondents’ contention thatpetitioners did not have standingas they failed to allege an injuryto themselves. Examining therequirements for standing toappeal a final decision of theSWCB in Virginia Code § 62.1-44.29, the court noted petitionersmust meet the “cases and contro-versies” standard for reviewembodied in Article III of theUnited States Constitution. The

court recognized that in order toallege injury sufficient for ArticleIII purposes, petitioners mustallege injury to themselves, notmerely injury to the environmentor to other persons. The petition-ers failed to allege injury to them-selves in their initial pleading butthe court, citing Ward’s Equip-ment, Inc. v. New Holland Ameri-ca, 254 Va. 379, 380 (Va. 1997),accepted allegations contained inan exhibit attached to the peti-tioners’ pleading. The exhibit wasan earlier letter to DEQ in whichpetitioners asserted the proposeddischarge outlet would damagehistoric places found on theirproperty. The court recognizedthat damage to an individual’snon-economic interests, such asrecreational, aesthetic or envi-ronmental interests, can be suffi-cient injury to support standing,citing Friends of the Earth, Inc. v.Laidlaw Environmental Services(TOX), Inc., 528 U.S. 167, 182(2000), Lujan v. Defenders ofWildlife, 504 U.S. 555, 562-63(1992) and Sierra Club v. Morton,405 U.S. 727, 734 (1972). Thecourt found damage to historicplaces analogous to damage torecreational, aesthetic or envi-ronmental interests and thus, aninjury to property interests suffi-cient to confer standing upon thepetitioners.


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