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Atlantic Coast Pipeline Loses Major Courtroom Battle in Virginia
28 January 2020
The Atlantic Coast Pipeline project suffered another legal blow
as on January 7 the US Court of Appeals for the Fourth Circuit
vacated the air permit for the project's Buckingham County,
Virginia compressor station.
The three-judge panel vacated the permit faulting the Virginia
Air Pollution Control Board's permit approval in light of
environmental justice concerns. The court also chastised the
Virginia Department of Environmental Quality (DEQ) for approving
the use of gas-fired turbines instead of electric and the court
claimed the DEQ had no jurisdiction to make that decision.
The court remanded the permit to the state air control board
citing both state and federal applications of the Clean Air Act
were at issue as well as a "a complex intertwining of local, state,
and federal laws and regulations."
This is the same court which vacated key permits from the US
Fish and Wildlife Service for Incidental Take and the US Forest
Service permit to cross the Appalachian Trail. The appeal of the
Latter vacated permit will be heard by the US Supreme Court. The
court is scheduled to rule by June, with oral arguments scheduled
for February on United States Forest Service, et al., v.
Cowpasture River Preservation Association, et al.
Environmental justice issues
However, the air permit has long been the center of a storm of
controversy with the Union Hill community being 84% non-white.
Nationally prominent environmental activists, such as Al Gore have
joined the cause of the Friends of Buckingham and the Chesapeake
Bay Foundation to oppose the siting of the compressor station
there. NAACP and the Sierra Club also joined the list of amici
curiae.
In the case of Friends of Buckingham v. State Air Pollution
Control Board no. 19-1152, Chief Judge Roger Gregory, Judge
James Wynn and Judge Stephanie Thacker stated in the 47-page
opinion that although the compressor station was properly certified
by the Buckingham County Board of Supervisors and received its air
permit they were not swayed by the pipeline developer's argument
that the compressor station was the only site available in Virginia
after FERC ruled out an alternative site. Nor were they swayed by
the company's argument that it was the only site that allowed the
pipeline to connect to the Transco system and was commercially
available.
The judges were particularly concerned that the compressor
station was permitted despite FERC's determination "that the
Compressor Station will increase the area's amount of nitrogen
oxide pollution and fine particle (PM2.5) pollution, and emit known
carcinogens into the community. FERC likewise recognized that
pollutants from compressor stations 'are known to increase the
effects of asthma and may increase the risk of lung cancer'."
The judges also cited Virginia statute in agreeing with the
petitioners' argument that the state board violated the law by
"...failing to assess the Compressor Station's disproportionate
health impacts on the predominantly African-American Union Hill
community and the suitability of the site."
The judges stated the board "thrice erred in performing its
statutory duty" for the following reasons:
it failed to make any findings regarding the character of the
local population at Union Hill, in the face of conflicting
evidence;
it failed to individually consider the potential degree of
injury to the local population independent of NAAQS and state
emission standards; and
DEQ's final permit analysis, ostensibly adopted by the Board,
relied on evidence in the record that was incomplete or discounted
by subsequent evidence.
Turbines at issue
The judges also went into great detail about the EPA's two-part
standard for "redefining the source" in the context of the
compressor station. As the court writes in a footnote, "EPA takes a
'hard look' at the proposed definition to determine which design
elements are inherent to the applicant's purpose and which elements
can be changed to reduce pollutant emissions without disrupting the
applicant's basic business purpose."
The court stated, "Having considered the entire record, we are
not satisfied that the Board provided a sufficient and rational
explanation of its failure to consider electric turbines in place
of gasfired turbines, and DEQ's responses to the public are
likewise insufficient."
Company comment
Atlantic Coast Pipeline issued a statement on the court's
decision refuting the charge of environmental injustice: "The
Buckingham air permit unanimously approved by the State Air
Pollution Control Board is the strictest air permit of any
compressor station in the country, with protections far exceeding
the U.S. EPA's guidelines for vulnerable populations. As a result,
the Buckingham compressor station will have significantly fewer
emissions and more air quality monitoring than any other facility
of its kind.
"In its opinion today, the Court recognized the stringency of
the permit, while requiring the state to provide more analysis and
explanation to support its approval."
The release also detailed the next steps for the project
developers. "We will immediately begin working with the state to
resolve the procedural issues identified by the Court. We are
confident the additional analysis required by the Court can be
completed in a timely manner."
The company still maintains it can bring the project in on time
by its repeatedly revised target in service date. "We expect the
project will still deliver significant volumes to customers under
our existing timeline, even as we work to resolve this permit."
The company added, "The Atlantic Coast Pipeline is needed now
more than ever for our economy and to accelerate our path to a
low-carbon future. New infrastructure will solve the chronic
shortages of natural gas in Hampton Roads and eastern North
Carolina and allow these communities to revitalize their
manufacturing economy. It will also provide the reliable natural
gas we need to support the rapid expansion of renewables across
Virginia and North Carolina."
And as so often before after the announcement of yet another
setback, the company reiterated its commitment to the project.
"This project is all about growing the economy and moving toward
clean energy, and we remain totally committed to its
completion."
Work on the project has been halted since the Fourth Circuit
Court decision in December 2018 on the US Fish and Wildlife Service
permit. The1.5 Bcf/d project, now running upwards of $7.5 billion
in costs and its full in service delayed to the first half of 2022,
runs 594 miles from Harrison County, West Virginia to Robeson
County, North Carolina. Dominion Energy is the lead developer along
with joint venture partners Duke Energy, Piedmont Natural Gas and
Southern Company Gas.
