947 F.3d 68
4th Cir.2020Background
- Atlantic Coast Pipeline (ACP) sought a permit to build a natural-gas compressor station in Union Hill, Buckingham County, VA; DEQ elevated the Article 6 (minor source) permit to the Virginia Air Pollution Control Board (the Board).
- Petitioners (Friends of Buckingham & Chesapeake Bay Foundation) challenged the permit, arguing DEQ/Board failed to: (1) consider electric (zero-emission) motors as a BACT alternative; and (2) assess disproportionate health impacts and site suitability for the predominantly African-American Union Hill community (environmental justice concerns).
- DEQ declined to consider electric turbines, invoking a “redefinition of the source” rationale (not articulated under Virginia law), and relied on NAAQS modeling, a limited site inspection, and the county Special Use Permit for site suitability.
- The record contained conflicting demographic data: FERC census-based analysis and EPA EJSCREEN/ESRI reports showing lower minority shares, versus a door-to-door Friends of Buckingham survey reporting ~83% minorities near the site.
- The Board issued a one-page decision adopting DEQ’s recommendation; the Fourth Circuit found DEQ/Board failed to explain exclusion of electric motors and failed adequately to evaluate environmental justice/site suitability, and vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board was required to consider electric (zero-emission) motors as a BACT/control alternative | VA SIP requires BACT for minor sources; electric motors would eliminate on-site emissions and must be considered; DEQ misapplied a "redefining the source" rationale that does not appear under Virginia law and offered no explanation | DEQ/ACP: electric motors would "redefine the source" (require redesign, grid interconnection, outages), are not an applicable control technology, and DEQ reasonably relied on its interpretation and FERC EIS | Vacated and remanded — court held DEQ/Board failed to articulate or justify exclusion of electric motors under Virginia law; reliance on a nebulous "redefining the source" was arbitrary and capricious |
| Whether the Board adequately assessed disproportionate health impacts and site suitability (environmental justice) | Board ignored conflicting demographic evidence, failed to make findings on whether Union Hill is an EJ/minority community, and did not assess localized health risks (especially PM2.5 and toxics) to residents closest to the site | DEQ/ACP: compliance with NAAQS, DEQ air modeling, county Special Use Permit, and FERC EIS show no disproportionate harm; NAAQS protect sensitive populations | Vacated and remanded — court found the Board failed to resolve conflicting evidence, improperly relied mainly on NAAQS and an inadequate site inspection/SUP, and did not make required findings under Va. Code §10.1-1307(E) |
| Standard of review for Board's permit decision | Petitioners: apply federal arbitrary-and-capricious standard (deferential review) | ACP: argue Virginia substantial-evidence standard applies | Court applied arbitrary-and-capricious standard (noting similarity to Virginia review), reviewed legal issues de novo, and remanded based on failures of explanation and factfinding |
Key Cases Cited
- Helping Hand Tools v. U.S. Envtl. Prot. Agency, 848 F.3d 1185 (9th Cir. 2016) (explains the federal "redefining the source" limitation on BACT/PSD reviews)
- Sierra Club v. Envtl. Prot. Agency, 499 F.3d 653 (7th Cir. 2007) (EPA will not force a redesign of the facility proposed by the applicant in BACT analysis)
- Ala. Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1980) (context on the purpose and scope of the PSD program)
- Appalachian Voices v. State Water Control Bd., 912 F.3d 746 (4th Cir. 2019) (standard of review and arbitrary-and-capricious framework for state environmental agency decisions)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agencies must articulate contemporaneous reasons; courts may not accept post-hoc rationalizations)
- Am. Trucking Ass'ns v. Envtl. Prot. Agency, 283 F.3d 355 (D.C. Cir. 2002) (no known harmless threshold for particulate matter; health risks from PM)
- Cowpasture River Pres. Ass'n v. Forest Serv., 911 F.3d 150 (4th Cir. 2018) (an agency adopting another agency's EIS must perform an independent review)