SUFFOLK, Va. (WAVY) — Does a local government have the right to pollute — and is it protected by sovereign immunity?

That is at the center of a recent case in Suffolk Circuit Court. The judge used a 100-year-old U.S. Supreme Court case — Darling v. Newport News (1919) — that says a government can pollute.

It also says protecting oyster beds on ground owned by the state is not a priority.

A local oysterman has filed an appeal to the Virginia State Supreme Court claiming the City of Suffolk and Hampton Roads Sanitation District do not have the right to pollute the Nansemond River.

In January, 10 On Your Side reported on Suffolk waterman Robert Johnson, who had several hundred acres of oyster beds condemned by the Virginia Department of Health because of bacterial pollution.

He’s filing the appeal because the Circuit Court Judge that dismissed the case used case law from 1919 that Johnson doesn’t believe applies anymore.

His attorney is property rights attorney Joe Waldo.

“The court believes their hands are tied by a case handed down by the U.S. Supreme Court,” Waldo said.

Suffolk Circuit Court Judge Wayne Farmer used the 1919 U.S. Supreme Court Case that “held an oyster bed lessee’s property rights (to use the river bottom) is subordinate (inferior) to the locality’s right to pollute the waterways.”

“The law allows them because they are the government to discharge raw sewage and storm water runoff into the Nansemond River regardless of whether or not it pollutes the river,” Waldo rebutted. Under these circumstances, the government has the right to pollute the water.

Farmer used the 1919 law that predates new environmental regulations.

The Clean Water Act in a South Carolina case imposed severe limitations on the right to discharge sewage or other pollutants, but Farmer ruled, “There does not appear to be any authority under Virginia Law establishing that a nuisance may be a taking.”  

“Suffolk and HRSD, do we have the technology to treat raw sewage and storm water runoff before you dump it in the Nansemond RIver?” Waldo asked. “Of course we do.”

The attorney representing the city did not return our calls to his office.

In January, attorney David Arnold told 10 On Your Side the city is not in violation of that consent order, and has done nothing wrong.

Suffolk spokeswoman Diana Klink said Suffolk has not experienced any raw sewage runoff from the city’s G. Robert House Jr. Water Treatment Plant.

Johnson and Waldo are asking the State Supreme Court to award an appeal, reverse the judgment, and send back the case for a new trial.

“We want the City of Suffolk to recognize they are polluting.  They have entered into a consent decree, which is an order from the court to clean up the pollution, but they have refused to do it, so we have ask the court to recognize that. Further we have asked the City of Suffolk that if they are  going to continue to pollute and take away the oysters, we want them to pay for the oysters,” Waldo said.