The Time has Come to Apply ‘Environment Justice’ Criteria to Energy Projects

by Diana Gooding on June 7, 2020

Blue Ridge Mountains of Virginia

INSIGHT: Fourth Circuit Rules ‘Environmental Justice Is Not Merely a Box to Be Checked’

From an Article by Simone Jones & Nicole Noëlliste, Sidney Austin LLP, Bloomberg Law, March 5, 2020

The conventional wisdom in the environmental bar is that “environmental justice” remains an aspirational goal, rather than a concrete compliance point.

The U.S. Court of Appeals for the Fourth Circuit recently sent the opposite message in Friends of Buckingham v. State Air Pollution Control Board (Jan. 7, 2020).

There, the court vacated the Virginia Air Pollution Control Board’s grant of a minor source permit to Atlantic Coast Pipeline LLC (ACP) for the construction and operation of a compressor station, intended to facilitate the transmission of natural gas through ACP’s pipeline, in a historic, predominantly African American community. The court declared that “environmental justice is not merely a box to be checked.”

In September 2015, ACP filed an application with Virginia’s Department of Environmental Quality (DEQ) for a minor source New Source Review permit to construct and operate a compressor station consisting of four natural gas-fired turbines. The compressor station would emit nitrogen oxides, volatile organic compounds, and other pollutants. The compressor station was proposed to be constructed in Union Hill in Buckingham County, Virginia—an African American community largely occupied by descendants of freed slaves.

During the public comment period, a group of Buckingham County residents conducted a demographic study finding that Union Hill was largely African American, was comprised of descendants of former slaves, and alleged that community members suffered from health conditions that would make the residents more susceptible to emissions from the compressor station. Following public hearings, the board adopted the VA-DEQ’s recommendation to approve the permit.

Local Residents Challenge Compressor Permit

The Buckingham County residents challenged the permit before the Fourth Circuit, which vacated the approval of the permit on two primary grounds.

First, the court concluded that the board’s environmental justice review was insufficient in that it failed to determine whether the Union Hill community was a “minority” environmental justice community—an important designation when determining the likelihood of disproportionate health impacts to residents.

Under Va. Code Ann. § 10.1–1307(E), when approving minor source permits, the board is required to consider, among other things, “the character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened to be caused,” and “the suitability of the activity to the areas in which it is located.”

The court cited as an additional error the board’s failure to assess the compressor station’s potential for disproportionate health impacts on the predominantly African American community, rejecting the board’s rationale that there could be no disproportionate health effects from air pollution below the National Ambient Air Quality Standards (NAAQS). Notably, the court reasoned that even if all pollutants within the county remained below the NAAQS, the board must still assess the effect on the communities living closest to the compressor station.

The court also found that the board erred in failing to consider electric motors as alternatives to gas-fired turbines—technology that petitioners claimed would eliminate nearly all on-site air pollution from the compressor station.

Virginia Law was not clear or rational

Under Virginia law, minor source construction permits require best available control technology (BACT) review, a requirement that applies only under federal law to major emitting sources. The court rejected the “only rationale the Board could have ostensibly relied upon … for refusing to consider electric motors in its BACT analysis”: that replacing gas-fired turbines with electronic motors would constitute an impermissible “redefinition of the source.”

The court found that it was unable to locate in the administrative record a sufficient explanation of what the phrase means under Virginia law, specifically concluding, “We— and most importantly, the citizens of Virginia— do not know what the Virginia redefining the source doctrine is, how it works, and how this project meets its requirements.”

The court’s stated uncertainty should serve as direction to companies that “redefining a source” is yet another important issue to be considered as part of the project planning and approval process.

Concrete Compliance Requirement

The Fourth Circuit’s decision indicates that thorough consideration of a planned project’s potential impact on environmental justice communities is a concrete compliance requirement. Concerns around environmental justice have previously played a critical role in delaying energy projects.

For example, in In re: Shell Gulf of Mexico Inc. & Shell Offshore Inc. (EPA Dec. 30, 2010), the Environmental Appeals Board, in remanding Shell’s Clean Air Act permits for drilling in the Arctic, held that the EPA’s analysis of the permitted drilling’s effect on environmental justice communities was inadequate.

Given what appears to be an emerging trend requiring compliance, the regulated community should carefully consider environmental justice laws and their import when planning and seeking approval of major, capital-intensive projects.


Environmental Justice Review requires an in-depth study

See also: Environmental Justice in Unconventional Oil and Natural Gas Drilling and Production: A Critical Review and Research Agenda — Adrianne C. Kroepsch, et al., Environ. Sci. Technol. 2019, 53, 12, 6601–6615, May 22, 2019.

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Appalachian Voices June 7, 2020 at 4:35 pm

Appalachian Voices Speaks Out at This Time

Dear friends and concerned citizens, June 7, 2020

As an organization whose mission is grounded in a commitment to justice and lifting up underrepresented voices, Appalachian Voices stands in solidarity with the millions of Americans nonviolently rising up across the country in anguish and outrage to demand justice and dismantle systemic racism in America.

We are devastated by the murders of George Floyd, Breonna Taylor, Ahmaud Arbery and thousands of other people of color — those whose names we know and don’t know — who have been killed by police brutality and racist violence. We must all face the fact that racial inequities and the oppression of communities of color pervade our society — in healthcare, education, housing, the criminal justice system, and in environmental policy.

Appalachian Voices is committed to the ongoing struggle for a future built on racial justice and equity for everyone. To do this, we must learn from partner organizations and others at the heart of this struggle and continue to prioritize building inclusion, equity and diversity in our own organization and our own movements, while demanding the same from government institutions.

In response to the murder of George Floyd, Black communities and their supporters have mobilized in rural and urban areas alike, and young Black leaders are playing a key role. In this photo, Alexis Wray, a first-time organizer, and her fellow organizers lead a crowd of hundreds through downtown West Jefferson during the Ashe County, N.C., Black Lives Matter march on June 6.

A community-created Altar for Black Lives was set up by Small and Mighty Acts, a community organization led by people of color, outside the Appalachian Voices office in Boone, N.C. See more photos of the memorial on our June 1 Facebook post. See more photos of the memorial on our June 1 Facebook post.

Appalachian Voices stands with our regional allies, and we would like to leave you with some of their eloquent voices:

“What we saw last night in Louisville and what we’ve seen across the country is folks tired of being ignored. Police brutality and misconduct are a century-old issue that reflects our country’s grotesque and murderous beginnings. While these issues are pronounced in Black and urban communities, it’s true that we are all affected by a police state with few mechanisms for co-governance, accountability and justice.” (Cassia Herron, Kentuckians For The Commonwealth: In the wake of century-old violence, our task is to organize).

“We must dedicate ourselves to breathing life into our Constitution and its promises and refuse to accept a civility that covers up injustice. The very life of our democracy is at stake. Not the democracy that is, but the democracy that could be.” Bishop William J. Barber II, Poor People’s Campaign co-chair and president of Repairers of the Breach. (Poor People’s Campaign calls for day of fasting & focus to mark upheaval in country).

In solidarity,

The Appalachian Voices team


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